The Issue Should Petitioner levy an administrative fine in the amount of $500.00 against Respondent, pursuant to an administrative complaint drawn in accordance with Sections 402.305(12) and 402.310(1)(a), Florida Statutes?
Findings Of Fact Bobbie Potter owns and operates Ms. Bobbie's Flutterby Child Care Center (the Center), in Lake City, Florida. The Center is a child care facility licensed by Petitioner in accordance with Chapter 402, Florida Statutes. During late January and early February 2001, S.S. left her child, J.S., to be cared for by Respondent and others in her employ at the Center. At the time J.S. was approximately two years and two months old and weighed approximately 40 lbs. or 15.2 kilograms. He was born on December 21, 1998. J.S. attended day care at the Center on January 29 through 31 and February 5 through 7, 2001. On his first day at the Center J.S. cried and was resistant to the placement but became more acclimated. During that week J.S. did not try to escape the premises. By contrast, during the second week J.S. threw tantrums and tried to leave the Center. To thwart his attempts, a bench was placed to bolster the interior gate designed to control the movement of children within the facility. When confronted with the gate standing alone J.S. had tried to get through the gate. When he was told "No" to stop his progress, J.S. would throw himself on the floor. During tantrums J.S. would bang his head on the floor and the wall. Respondent had to put her hand up to stop him from banging his head. In the second week when J.S. was more vigorously reacting to his placement, he would be carried around by the Center staff to try to calm him down when he had tantrums. The other staff members who were involved with care provided J.S. at times relevant were Sue Misinec and Lilly Beckelheimer. Caregivers at the Center had to constantly remove J.S. away from the door to the outside, as well as away from the gates on the inside to keep him from fleeing the building. They were especially concerned when other parents came into the facility that J.S. might take advantage of that situation and leave. When J.S. would attempt his flight, he had to be picked up bodily and brought back. If J.S. had gotten outside he would have had access to a roadway. One other attempt to control J.S.'s movement within the Center was to use the lower half of a two-piece door to prohibit his movement within the Center but he climbed over the lower half of the door separating rooms. At times J.S. hit or kicked other children at the Center and kicked and hit caregivers. Eventually staff at the Center determined to place J.S. in a highchair when he threw tantrums as a means to try and calm him. This involved one teacher picking him up and placing him in the chair. Once in the chair, one person would hold him secure in the chair while another person snapped the safety strap and placed and locked the tray on the chair. This effectively restricted J.S.'s movement. J.S. did not like being placed in the chair. He would scream, kick, and claw when put in the chair. Ordinarily, J.S. would be left in the chair from two to five minutes until he calmed down, although on one occasion he was left in the chair for 15 minutes. While in the chair J.S. would be upset about his predicament. The use of the highchair as a means to confine J.S. took place on February 6 and 7, 2001. On Wednesday, February 7, 2001, the staff placed J.S. in the highchair against his will more than once but no more than three times. On one occasion on that date when J.S. attempted to follow Respondent out the door and the other employees were busy with other duties, Respondent said, "If he gets out the door you are not going to catch him," in comments offered to the staff members. As a consequence J.S. was placed in the highchair. J.S.'s placement in the highchair as a means to control him did not interfere with his toileting. He was not being "potty" trained at the time. His placement in the highchair did not interfere with his breakfast and lunch. His placement in the highchair for meals was with his cooperation. Sometime on Wednesday, February 7, 2001, when J.S. was being forcibly placed and detained in the highchair, he received bruises on his left side, right side, hip and back as evidenced in photos taken by S.S. on February 7, 2001. See Petitioner's Exhibit numbered 2A through 2G. When seen on February 13, 2001, by the University of Florida Child Protection Team, the bruises were still in evidence. On that date the bruise on the left side of J.S.'s abdomen, about two inches from his umbilicus, was one centimeter to one and one-half centimeters in length. The bruise on the right side of his abdomen just above the hip area was small and faint. It was about one and one-half centimeters in length. The bruises appeared yellow in color indicating that they were at least a couple of days old, according to Linda Cox Ebbeling, A.R.N.P., who examined J.S. on that date. Her opinion on the age of the bruises is credited. Photos taken at the time Ms. Ebbeling examined J.S. are attached as part of Petitioner's Exhibit numbered 1. Notwithstanding the presence of the bruises at the time Ms. Ebbeling examined J.S., the abdomen appeared non-tender, with no hepatosplenomegaly. Ms. Ebbeling did not observe any bruising on J.S.'s back as had been detected by S.S. on February 7, 2001. The confinement of J.S. to the highchair against his will is discipline that was frightening to the child. The discipline was severe and humiliating. It was a form of physical punishment.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered imposing a $500.00 administrative fine against Bobbie Potter, owner/operator of Ms. Bobbie's Flutterby Child Care Center. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES C. ADAMS 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 20th day of August, 2001. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Sort 3 Gainesville, Florida 32602-0390 Stephen M. Witt, Esquire Post Office Box 2064 Lake City, Florida 32056 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
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 Department of Health and Rehabilitative Services (HRS) seeks an administrative fine of $100 from the Wesley Child Development Center (Wesley) for violation of rules related to child supervision. The issues are whether the violation occurred and whether the fine is appropriate.
Findings Of Fact Wesley Child Development Center II is a child care facility licensed by the Department of Health and Rehabilitative Services (HRS) for operation at 42 East Jackson Street, Orlando, Florida. It is a pre-school facility associated with First United Methodist Church. On January 31, 1995, some time between 3:50 and 4:50 p.m., there were approximately seventeen (17) children and four (4) staff on the playground. The playground is confined with a sturdy, four-foot chain link fence. A.N. was a two-year old toddler on the playground; his teacher was Pat Vetter. A.N. had been playing with buckets and cars by himself near the fence and Ms. Vetter could see him through a play tunnel where two other children were playing. After he played alone for about 10-15 minutes, Ms. Vetter needed to start picking up toys. A.N. gave her his bucket. She turned from him and had taken about five steps when she heard him cry out with an angry cry. She turned back and saw him sitting on the ground with his legs out in front; he had been standing at the fence looking out at the parking lot. Ms. Vetter picked up A.N. and he stopped the angry cry, but continued whimpering. She consoled and held him until his mother arrived. There were no visible signs of any injury: no bruises, blood, scratches or swelling. When his mother picked him up, A.N. did not want to walk. She took him to a restaurant for supper, but later took him to the doctor for an examination. X-rays detected a spiral fracture of the child's femur bone. The cause of the injury remains a mystery to the child care facility staff, who were appropriately dismayed, and to the HRS staff who thoroughly investigated the incident. Dr. Seibel, the child protection team physician, conjectured that A.N. must have attempted to climb the fence, hooked his foot and fell, twisting his leg. No one observed the fall. Ms. Vetter was responsible for A.N.'s supervision and that of three other children on the playground. She was near him and aware of what he was doing. The accident occurred in the brief instant that she turned away to put up some toys; she did not leave the playground. The direct supervision staff to child ratio at the facility and on the playground was better than the 1:6 or 1:11 required by HRS' rules. There is no evidence that the staff were gossiping or engaged in any non-supervisory activity. There has never been a problem with supervision at this facility before, according to the HRS inspectors. No one contests that the child was injured at the facility. Ms. Vetter believes that he could not have had the fracture when he came to school that morning. Although other children have climbed on the fence, she has never observed A.N. trying to climb it. Still, the fence is the only plausible explanation for the injury.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the administrative complaint. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of October, 1995. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1995. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Suite S-827 400 West Robinson Street Orlando, Florida 32801 Elizabeth Jenkins Director Wesley Child Development Center II 142 East Jackson Street Orlando, Florida 32801
The Issue May Respondent, Department of Children and Families (the Department), deny the application for a renewal license of the Petitioner, Daddy's Daycare Early Learning Academy, Inc. (Daddy's Daycare)?
Findings Of Fact Daddy’s Daycare is a child daycare facility licensed by the Department. Lonnie Caldwell is the owner, operator, and director of Daddy’s Daycare. On March 25, 2015, D.T., a three-year-old child, was a student at Daddy’s Daycare, along with two siblings. She and her siblings were also foster children of Mr. Caldwell and his wife. On March 25, 2015, Mr. Caldwell and his wife were leaving the facility to take D.T. and other children to lunch. They were in the driveway of Daddy’s Daycare. D.T. did not want to go and threw herself down in a tantrum of resistance. Mr. Caldwell dragged D.T. down the driveway to the car, spanked her, and forcibly pushed her into the car. Mr. Caldwell’s rough treatment of D.T. abraded both her knees and bruised her legs. Photographs and testimony about direct observations establish the damage to D.T.’s knees and legs described in finding five. D.T. had other injuries. But the nature and cause of them were not established by persuasive evidence. Hearsay reports from observers lunching across the street from Daddy’s Daycare described the facts found in findings three and four. Mr. Caldwell’s statements, consistent and inconsistent, corroborate the observers’ hearsay. In a March 26, 2015, interview, Mr. Caldwell agreed that he and his wife were leaving to take children to lunch on March 25, 2015, at about the same time the observers reported seeing him drag D.T. across the driveway. He also agreed that D.T. threw herself to the ground. Mr. Caldwell denied dragging D.T. across the driveway. He did not mention anyone other than himself, his wife, and the children being in the driveway. Given the opportunity, Mr. Caldwell did not offer an explanation for D.T.’s injuries, although she spent the majority of her time with him either as a daycare student or as his foster child. His testimony at the hearing differed significantly. Mr. Caldwell was also evasive and made repeated references to knowing people were watching. This leads to a conclusion that he was trying to conceal information. At the hearing, Mr. Caldwell said that D.T. ran outside to the play area when she learned they were leaving for lunch. He says his son carried her to the car. This is one example of Mr. Caldwell’s testimony: I said, come on D. So when I told her that, D. immediately got off the swing but she dropped on the -- we have mulch on the field. So she just dropped to the ground and she was having one of her tantrums. I have an 11 year old son which was about to approach her. I said stop, Tim. I said stop right there. And I told my 15 year old because I knew that he wasn’t strong enough and my back was bothering so I just told my 15 year old, walk over there and pick D. up. I said because we are very visible. We don’t know who’s watching the center. And I don’t want any misconstrues. So I said, do not pull on her, pick her up and walk with her. So he did. He picked her up. I already went outside. You have to go through a gate. The vehicles are right up against the gate and on the grass area. Once he exit the – the gate with D., she’s still wailing and crying. I said give her to me. So he gave her to me. And when he gave her to me, she had mulch all over her – her pants and stuff so I had her face and back and I was just dusting the mulch off because I didn’t want her to sit on it because some of it is pretty prickly. So I made sure that all the mulch was off of her. And then I placed her in her car seat. She was still wailing because she does not like to be confined. But when D. sees that she has to get in her car seat, you don’t have to get a block away, she calms down completely. A totally different baby. She’s all calm. I said, see, that wasn’t bad at all. Was it? (Tr. pp.196-197) Mr. Caldwell’s March statements differ significantly from his testimony at the hearing in January 2016. The differences are not little “passage of time” sorts of discrepancies. In March he did not mention his two sons being present; he did not claim that D.T. was in the play area; he did not claim anyone else had touched D.T. Mr. Caldwell’s claim that at the time he expressed concern that someone may be watching and nobody should do anything that would be “misconstrued” persuasively indicates that he was trying to defensively adapt his testimony to fit other evidence. Altogether, the hearsay reports, Mr. Caldwell’s testimony, photographs of D.T.’s knees and legs, and Mr. Caldwell’s conflicting March statements are persuasive, clear, and convincing evidence that he dragged D.T. across the driveway, spanked her, and threw her in the car and has been trying to conceal those facts. These facts also resulted in an investigation concluding with a verification of physical abuse of D.T. by Mr. Caldwell. Visits by Department employees during the course of the investigation of the March 25 incident revealed several other licensing violations including: insufficient staff, inadequate supervision, roaches crawling on a table, peeling paint, an unplugged electrical outlet, hazardous materials (including cleaning supplies and a knife) available to the children, improper assembly of playpens (making them a danger to the children), failure to conduct a March fire drill, an improperly anchored swing set, bolts protruding from playground equipment, broken equipment, unsecured medication menu not posted, unlabeled bottles and “sippy cups”, incomplete personnel records, and failure to properly record attendance. The Department also asserted that employees used physical discipline or the threat of it. The Department did not prove this by non-hearsay evidence. The evidence is insufficient to prove the claims. § 120.57(1)(c), Fla. Stat. (2015).1 On July 25, 2014, Daddy’s Daycare was in violation of many licensing requirements. Its staffing was insufficient, and it was not providing the children sufficient supervision. Daddy’s Daycare also had not properly recorded children’s attendance, had not documented level 2 background screening for some employees, had not documented required staff training, and had not documented the employment history for some employees. In addition, on July 25, 2014, Daddy’s Daycare did not have the required records of all the children’s immunizations. Other violations on July 25, 2014, were not properly sanitizing the diapering surface, rinsing a bottle in the handwashing sink, failure to properly document a volunteer, failure to label the children’s bottles and “sippy cups”, feeding a child using a propped up bottle, and incomplete enrollment information for some children. On August 26 and 27, 2014, Ms. Ebrahimi and Ms. Dukes inspected Daddy’s Daycare. On those days Daddy’s Daycare was again not in compliance with several licensing requirements. Mr. Caldwell and two employees had not completed required in- service training. On the 27th, two infants did not have proper supervision. Toxic substances including bleach, cleaning supplies, and paint were available to the children. So were plastic bags and a knife. The posted emergency contact information was incomplete. Substitutions to the posted menu were not posted. On December 29, 2014, Ms. Dishong inspected Daddy’s Daycare for the Department. Daddy’s Daycare was again in violation of several licensing requirements. The staffing was insufficient. The kitchen was not securely separated from the classroom area. The infant room was not properly secured. Playground equipment was not properly anchored. On April 21, 2015, Daddy’s Daycare did not have the lighting required for a daycare facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Children and Families, enter a final order denying renewal of the daycare license of Petitioner, Daddy’s Daycare Early Learning Academy, Inc. DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 25th day of March, 2016.
