The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and if so, what penalty should be imposed.
Findings Of Fact The Learning Tree Child Care Development Center is a licensed child care facility owned and operated by Priscilla Johnson. On August 21, 2006, Carmen Burruezo, an employee of the Petitioner, conducted an inspection of the facility and observed several violations of statutory requirements related to operation of a child care facility. An insufficient number of staff was present to comply with applicable staffing ratio requirements, certain transportation documentation was not available for review and the outdoor play area was in unsafe condition. The inspector observed that only one staff person was in the area where 20 three-year-old children were located. According to staffing requirements, there must be one staff for every 15 three-year-old children in the area, and accordingly, an additional staff member should have been sharing supervisory responsibility for the children. The staffing violation was corrected during the course of the inspection. At the hearing, the Respondent Johnson questioned how staffing ratios could be met during times when a staff member leaves an area for various reasons including using restroom facilities, but did not offer any evidence that the inspector's observations were incorrect. During the inspection, the inspector attempted to review documentation of a vehicle inspection for the facility vehicle but none was available. Similarly, the inspector requested to review the vehicle driver's physician certification, but it was not available. Respondent Johnson provided such documentation to the Petitioner at a date subsequent to the inspection. In the outside play area, the inspector observed that there was no resilient surface under the swing set, and that the resilient surface provided elsewhere (which consisted of padded mats) was not fitted together and, therefore, presented a tripping hazard to small children. The play area was completely exposed to the sun and no shaded area was available. The inspector also observed a broken bed frame and other discarded equipment within the playground area, and found the location of the debris to be unsafe. Respondent Johnson offered no testimony disputing these observations. In previous inspections, the facility has been previously cited for the same types of infractions. Staffing ratio issues were cited in inspections dated April 21 and January 6, 2006. Inadequate transportation documentation was cited in an August 25, 2005 inspection. Unsafe playground issues were addressed in an inspection dated December 23, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order imposing an administrative fine of $300 against The Learning Tree Child Development Center d/b/a The Learning Tree Child Care Development Center and Priscilla Johnson. DONE AND ENTERED this 10th day of January, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th of January, 2007. COPIES FURNISHED: Stacy N. Robinson, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1114 Orlando, Florida 32801 Priscilla Johnson The Learning Tree Child Care Development Center, Inc. 4540 South Orange Blossom Trail Orlando, Florida 32839 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 1, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, a licensed childcare facility, committed a Class I violation related to inadequate supervision of a child as alleged in the Petitioner's Amended Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Based upon the evidence presented and the record as a whole, the following Findings of Fact are made: The parties stipulated to the following facts in their Joint Pre-Hearing Stipulation (paragraphs 1 through 10 below): DCF is an administrative agency of the state of Florida, charged with the duty to enforce and administer the provisions of chapter 402, Florida Statutes, and Florida Administrative Code Rules 65C-22.010 and 65C-20.012. Global Learning operates a licensed childcare facility known as Global Learning of Port Saint Lucie, Inc., located at 4333 Southwest Darwin Boulevard, Port Saint Lucie, Florida 34953. The facility operates under license/ID No. C19SL0139 issued by DCF with a licensed capacity of 132. At all relevant times, Global Learning was regulated by DCF according to, inter alia, the following documents: (i) DCF Child Care Facility Handbook, incorporated by reference in rule 65C-22.001; (ii) CF-FSP Form 5316, Child Care Standards Classification Summary, October 2017, rule 65C22.010(1)(e)1.; (iii) Florida Department of Children and Families Desk Reference Guide, updated July 2018; (iv) section 402.281; (v) section 402.305; (vi) section 402.310; (vii) section 402.310; (viii) rules 65C-22.001 through 65C- 22.010. As referenced in the Complaint, DCF cited Respondent with a violation of standard 4.2, which states "Class 1 violation; [o]ne or more children were not adequately supervised in that a child was unsupervised, which posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety or well-being of a child." As referenced in the Amended Complaint, DCF cited Respondent with a violation of standard 4.3, "Class I violation; [a] child was not adequately supervised and left the facility premises without child care personnel supervision." As referenced in the Complaints, DCF imposed a fine upon Global Learning in the amount of $500.00. As referenced in the Complaints, DCF seeks to revoke Global Learning's Gold Seal Quality Care designation. At all relevant times, Global Learning held a valid child care license to provide child care services. At all relevant times, Global Learning possessed a Gold Seal Quality Care designation. At no time prior to the violation referenced in this matter did Global Learning ever receive a Class I violation. Case History and Investigation The case began when DCF conducted an investigation into an alleged violation of the Child Care Licensing Standards, which occurred on April 26, 2019, at Global Learning Center in Port Saint Lucie, Florida. The investigation was prompted after DCF received a complaint that a young child had left his classroom at the Global Learning day care facility, wandered in the neighborhood without supervision for some period of time, and was eventually found by a passing motorist walking on a sidewalk alongside the road. The assigned DCF investigator visited and inspected the facility, reviewed documentation, and conducted interviews of staff members and other witnesses. Discovery by a Good Samaritan The evidence disclosed that a local resident, Jeanette Plesnick, was driving down Kester Street in Port Saint Lucie, Florida, on the afternoon of April 26, 2019. While driving she spotted a five-year-old child, B.K., walking alone on the sidewalk with his blanket. The sidewalk ran alongside a public road.2/ Out of concern, Plesnick stopped her car and questioned the child. He was unharmed and in good shape. Nonetheless, she secured the child and immediately reported the matter to local law enforcement. Plesnick waited with the boy for law enforcement to respond. A police officer arrived roughly 30 minutes later. Plesnick was familiar with the location of the Global Learning facility. She estimated that it was a block to a block-and-a-half away from the location where she found the young boy. Plesnick also estimated that it would take her about ten minutes to walk to the day care facility directly from the location where she found B.K. The boy's father, Kent Kummerfeldt, was notified by law enforcement that his son had left the day care facility. Kummerfeldt immediately left his job in Palm Beach County and drove to the day care facility in Port Saint Lucie. His son was safely back at the day care when he arrived. Naturally, Kummerfeldt had expected his son to be educated in a safe environment at Global Learning, and was surprised that his son was allowed to leave the facility unsupervised. Classroom Incident on April 26, 2019 The essential facts surrounding how, when, and why the boy departed from his classroom at Global Learning were largely undisputed. B.K. told his father that he left the classroom alone through an exit door, went outside to the children's playground, and then climbed over the playground fence. DCF's investigator, Deanna Trainor, interviewed several of Respondent's employees, including the classroom teacher, LaJane James ("James"). As the facts developed, it was revealed that James was the only adult teacher in the classroom when the boy left. It was clear that for some period of time, James was solely responsible for the supervision of B.K. and the other 21 children who were napping in the classroom. More specifically, another teacher assisting James in the supervision of the classroom had left to eat lunch. This left James alone to watch the napping students. There was also evidence, which the undersigned credited, that the number of children in the classroom exceeded the allowable one to 20 ratio of students-to-teacher, while James was alone in the classroom. James told the investigator that she started cleaning up the room after she laid the children down for naps. James admitted that it must have been during that period of time that B.K. got up off his sleeping cot and went out the door without her seeing him.3/ In the investigator's opinion, the class room had loud acoustics and the exit door B.K. used to go out to the playground was also very loud. From the evidence and pictures submitted, the classroom was large, open, and the view to the exit door was unobstructed. In fact, the pictures revealed that the teachers' desk area was immediately next to the exit door used by B.K. Based on Trainor's investigation and inspection of the exit door and surrounding area, she concluded that it would have been "hard to miss" if a child opened the classroom door and went outside. This conclusion by Trainor is credited and accepted. Janet Higgins, was the general manager of Global Learning on the day of the incident. She offered a good deal of testimony regarding the operations, accreditation, training, licensing, and credentials of Global Learning.4/ Higgins acknowledged that B.K. was supposed to be supervised in the classroom at all times. Higgins was not present in the classroom when the incident occurred, but related that at approximately 12:30 p.m., as was the normal practice, the children would have been laid on their mats or cots for daily naptime. Higgins acknowledged that the child made his way outside the facility she managed and was eventually found by a Good Samaritan down the street. After the incident, Global Learning took remedial action and made some physical changes to the exit doors, installing bells and higher doorknobs. Not surprisingly, James was terminated by Higgins shortly after the incident. After concluding its investigation, DCF ultimately determined that the allegations were verified. This determination was followed up by the issuance of an administrative complaint seeking sanctions against Global Learning.
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: (1) Finding that Global Learning violated Handbook Rule 2.4.1(B) and, by reference, standard 4.3.; (2) Imposing a fine in the amount of $500.00; and (3) Revoking Global Learning's Gold Seal Quality Care Designation, as required by law. DONE AND ENTERED this 13th day of January, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 13th day of January, 2020.
The Issue The issues to be resolved in this proceeding concern whether the application submitted by the Petitioner for a new one-year license for Small Fries Day Care, Inc., should be granted, or denied based upon violations of specified statutes and rules referenced below as alleged by the Respondent. It must also be resolved whether the application to operate a new facility known as the Growing Tree Learning Center and Nursery should be denied because of the same alleged instances of non- compliance with the relevant statutes and rules.
Findings Of Fact The Petitioner operates a child care facility known as Small Fries Day Care, Inc. She also has applied for a license to open a new facility known as the Learning Tree. The Department notified the Petitioner, by letter of July 23, 2004, that the application submitted for a new one-year license for Small Fries was denied. The letter of denial was based on violations of statutes and rules enforceable by the Department, which were purportedly discovered during the inspections of the facility in April, May, and July of 2004. Thereafter by letter of August 3, 2004, the Petitioner was notified that her application for a license to operate a second child care facility known as the Growing Tree Learning Center and Nursery was also denied, based upon the history of alleged violations and non-compliance with statutes and rules during the operation of the Small Fries. The Petitioner requested a formal administrative proceeding to contest both decisions and the matter was referred to the Division of Administrative Hearings. The two cases were later consolidated into the instant proceeding. The Department received a complaint regarding transportation of children. It therefore dispatched an investigator, Judy Cooley, to conduct an inspection of the Petitioner's facility on April 6, 2004. The precise nature of the complaint was never substantiated. Ms. Cooley, however, upon conducting her inspection, discovered a violation of Florida Administrative Code Rule 65C-22.001(6)(f). This is a rule which mandates that children transported in a van must be counted and that both the driver of the van and one staff member must both count the children and sign a transportation log verifying that all children had exited the van. This is required to be done each time children leave or board the van. The failure to document an inspection of the van by both the driver and another staff member to ensure that all children are accounted for and out of the van is considered to be a major violation of the Department's rules and policy. The purpose of that requirement is to prevent children from being accidentally left in a van in the hot sun (or left at some location away from their home or the Petitioner's facility when the van departs a location.) If a child is left in a van in the hot sun a serious injury can result, rendering this infraction a serious one. Ms. Cooley also determined that a violation had occurred concerning the "background screening" requirements upon her inspection on April 6, 2004. That is, the Petitioner's records did not show that screening had been done for all personnel employed by the Petitioner's facility. On May 11, 2004, another investigation or inspection of the facility was conducted by the Department. This was because the Department had received an anonymous abuse report concerning the Petitioner's facility. Upon investigation it was determined that the report was unfounded. It had been alleged that a child had sustained an eye injury while in the custody and care of the Petitioner, but that was determined not to be the case; rather, the eye problem was determined to have been "Sty" infectious process and not a result of any injury sustained while a child was in the care of the Petitioner or her staff members. The Petitioner was also charged with a violation regarding this eye injury issue for failing to file an "incident report" concerning it and failing to give a copy of the report to the child's parent the same day of the incident. This violation has not been proven by the Department because, in fact, no injury occurred. The child had to have appeared on the premises of the Petitioner's facility that day already suffering from the eye condition. Therefore, there was no "incident" occurring on the premises of the Petitioner, or while the child was in the Petitioner's care. Therefore, there could be no incident requiring reporting to the Department and the parent under the Department's rules and policies. Apparently, the owner of the facility, Ms. Carter, later provided a copy of an incident report in the belief that the Department required it. In any event, this purported violation was not shown to have legally or factually amounted to an incident or a violation. As to that May 11, 2004, inspection or investigation, however, the Department's evidence derived from that May 11, 2004, inspection which was not refuted establishes that the Child Protective Investigator (CPI) who conducted the investigation observed other violations. The investigator noted that the staff was failing to adequately supervise children and that the staff had not had required training. The CPI found that after observing the day care facility on three different occasions in a two-week period, there were always children "running around," not in their classroom and without staff providing supervision of them. The CPI noted prior reports for inadequate supervision and noted that some of the staff had not been trained in all of the required hours for teachers required by the Department's rules. These findings by the CPI were supported by unrefuted evidence adduced by the Department at hearing, and accepted as credible. Ms. Cooley returned to the facility to conduct a follow-up inspection on July 23, 2004. This inspection was specifically related to the pending application filed by the Petitioner for a renewed one-year license for the facility. Ms. Cooley prepared a list of activities, conditions, or records as to the facility, its operations, the children, and the staff personnel, for purposes of indicating whether those checklist items, based upon Department rules, had been complied with or had not been complied with. There were a total of 63 specific requirements under the Department's statutes and rules for Ms. Cooley to employ in inspecting the facility. Ultimately, she found that the facility was in non-compliance on 11 out of the 63 items. Ms. Cooley thus determined on this visit that the required staff-to-child ratio was improper. The facility was out of compliance on this issue by having only one staff member supervising the "infant room" with one child less than a year old, and five children aged one year. The number of staff needed is controlled by the age of the youngest child in a group. Two staff members were required in this instance instead of one. Ms. Cooley also found, as a minor violation, that the facility had an open door with no screen, with only a curtain covering the opening and that children were sleeping on the floor on only towels instead of the required individual sleeping mats (minimum one inch thick.) The owner of the facility, Ms. Carter, however, testified that indeed the mats were in use but were covered with towels and therefore they were not readily visible. It is thus difficult to determine whether all the children slept on required sleeping mats or some of them, or none of them. The testimony in this regard at least roughly amounts to an equipoise, and it is determined that this violation has not been established. Another violation Ms. Cooley found to have occurred was that there were no records which would establish that the facility had conducted required fire drills for one and one-half months. Child care facilities such as this mandatorily must conduct at least once a month fire drills. They mandatorily must document each fire drill in a record for ready inspection. Ms. Cooley also found that there was no record proof of enrollment by staff members in the required 40-hour training course which all employees must undergo within 90 days after they are hired. The facility also had been cited for this violation on the April 6, 2004, visit. It remained uncorrected during the interim and on the day of Ms. Cooley's second visit. Another violation was found on this occasion in that, for the number of children present in the facility, there must be at least two staff members who have the necessary child development associate credentials. There was only one staff member who had those necessary credentials. There are also no records to establish that the required in-service training for staff members had been conducted. The additional three violations found by Ms. Cooley involve the failure to maintain required records concerning child immunizations, staff personnel records, and background screening records establishing that background screening had been properly done. If that required information is not appropriately filed and available at the facility, that in itself is a violation. If the file record was required to document compliance with some requirements, such as staff training, the absence of the documentation results in a presumption that there was no compliance. The lack of adequate staff in the infant room necessary to meet the statutorily required staff-to-child ratio, as noted on the July 23, 2004, inspection, is a major violation under Department rules and policies. Direct supervision is mandated for children of that age at all times. The maintenance of this staff-to-child ratio is considered to be so important by the Department that its staff are not allowed to leave a facility if an improper staff-to-child ratio (inadequate) is found to exist until the problem is corrected. The failure to keep records establishing timely compliance with background screening requirements for staff of the facility, provided for in Chapter 435, Florida Statutes, was found on the April 6, 2004, inspection and found to still exist at the time of the July 23, 2004, visit. The same factor was true with regard to the requirement that new staff be enrolled in the mandatory 40 hours training program within 90 days of being hired. The failure to correct these problems concerning background screening and training and the documenting of it, between April 6, and July 23, 2004, becomes even more critical when one considers that Ms. Carter, the owner of the Petitioner, had been provided with technical assistance by Ms. Cooley designed to help her bring her facility into compliance in all respects at the April 6, 2004, inspection visits. These violations concerning the background screening, training requirements and then documentation are considered to be serious infractions by the Department in its interpretation of its rules, and in the carrying out of its policies. In summary, although one or two of the violations were not proven and at least one, such as the failure to have a screen on a door, was not established to be a serious violation, the established violations do show an overall pattern of disregard of statutes and rules adopted for the safety, health, and welfare of children entrusted to the care of such a child care facility owner and operator. That this was so, even the Petitioner was informed of and counseled regarding the violations. Some of them remained in non-compliance or at least again in non-compliance, upon the second inspection visit. It is not enough that the operator or owner of the facility provided the required documentation later after its absence is discovered or that she corrected the training, background screening, and other violations after they were discovered. The statutes and rules which apply require that such operations be done correctly at all times, and that performance be timely documented at all times. The keeping of documentation in the facility's records concerning the violative items referenced above is not required for mere hollow bureaucratic convenience, but rather, because the Department has a very high standard of public trust in ensuring that children in such facilities are maintained in a safe fashion. It must have available, for ready inspection, at all reasonable times, the documents which support that the duties imposed by the various relevant statutes and rules are being properly carried out, so that it can know, before severe harm occurs to a child or children, that they might be at risk. These established violations contribute to the overall pattern, shown by the Department, of an habitual disregard of the statutes and rules adopted and enforced for purposes of the safety of the children entrusted to the care of the Petitioner (or at least timely compliance). Indeed, prior to the denial of a new one-year license for Small Fries and the denial of initial licensure for the proposed Growing Tree Facility, the licensing supervisor, Ms. McKenzie, conducted a review of the licensing file of the Petitioner. Ms. McKenzie thus established in the evidence in this record, that the file reflected repeated past violations involving failing to adequately supervise children and concerning the background screening and training and timely training of employees. Upon completion of each inspection involved in this proceeding Ms. Carter, the operator, was given a copy of the report or checklist prepared by Ms. Cooley. She was given an opportunity at that point to respond to it or to write any comments thereon. On neither occasion, April 6, 2004, nor July 23, 2004, were there any written comments made by Ms. Carter that disputed the fact of the violations found by Ms. Cooley. There were some notes by way of explanation or of justification concerning the hiring of a teacher "for my toddlers" etc., but the notes or explanations provided by Ms. Carter in writing and in her testimony at hearing, do not refute the fact of the occurrence of the violations delineated in the above Findings of Fact. In summary, Ms. Carter's explanations in her testimony to justify or explain the failures or the violations found above are not credible, in terms of showing that the violations did not occur.
Recommendation That having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Children and Family Services granting a provisional license to Small Fries Day Care, Inc., conditioned on the holder of that license undergoing additional training at the direction of the Department, designed to educate the operator under the license regarding the proper, safe care, and protection of children in her custody, operation of a child care facility, including the proper screening and training of staff, record keeping, and the other items of concern shown by the violations found in this case. Such provisional licensure shall be in effect for a period of one year when such training shall be completed, and shall be conditioned on monthly inspections being performed by relevant Department personnel to ensure compliance with the relevant statutes and rules. It is, further, RECOMMENDED that the application for licensure by the Growing Tree Learning Center and Nursery, Inc., be denied. DONE AND ENTERED this 12th day of September, 2005, in Tallahassee, Leon County, Florida. S COPIES FURNISHED: P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 12th day of September, 2005. Gregory Venz, 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 Robyn A. Hudson, Esquire 3900 Lake Center Drive, Suite A-2 Mount Dora, Florida 32757 T. Shane DeBoard, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
