The Issue The issue for determination in this case is whether Respondent's license to operate a child day care facility should be revoked for violations of Chapter 402, Florida Statutes, and Rule Chapter 10M-12, Florida Administrative Code.
Findings Of Fact Petitioner, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, HRS, is the agency of the State of Florida vested with the statutory authority to license and inspect child day care facilities. Respondent ELMER ROGER PILLSBURY holds a provisional license issued by HRS to operate WHITFIELD ACADEMY, a child day care facility located in Manatee County, Florida. Respondent KAREN PILLSBURY is the manager of WHITFIELD ACADEMY, and is responsible for the day-to-day operations of the facility. In addition to managing WHITFIELD ACADEMY, Respondent KAREN PILLSBURY also operates Kinder Kare Day Care, another licensed child day care center in Manatee County, Florida. At all material times, Respondents ELMER ROGER PILLSBURY and KAREN PILLSBURY have been married. WHITFIELD ACADEMY was first licensed by HRS on June 27, 1989. At that time KAREN PILLSBURY was the owner of the facility. On June 1, 1990, ownership of the facility was transferred from KAREN PILLSBURY to ROGER ELMER PILLSBURY. After the transfer of ownership, KAREN PILLSBURY continued as the operator of the facility, and was in control of the management of the facility. WHITFIELD ACADEMY has an authorized licensed capacity of one hundred and thirty five children. During the period relevant to this proceeding the facility has had a daily census ranging from thirty to ninety children, with an average between fifty and sixty children per day. Staffing at the facility has ranged from four to nine employees. Pursuant to statutory authority, HRS routinely conducts quarterly inspections of licensed child day care facilities. HRS also routinely investigates complaints filed against licensed child day care facilities. Beginning in 1989 and continuing through 1995, HRS has cited Respondents for numerous statutory and rule violations including the following charges set forth in the Administrative Complaint: child abuse; failure to comply with staff/child ratios; failure to maintain direct supervision; improper storage of dangerous chemicals; roach infestation; fire code violations; failure to repair shattered glass in a window; corporal punishment; unsanitary bathrooms; failure to designate staff left in charge; nonconstructive discipline; and failure to cooperate with health officials in responding to an outbreak of Hepatitis A. Child Abuse On or about April 25, 1989, Respondent KAREN PILLSBURY, while working at Kinder Kastle Day Care, disciplined an eighteen-month old child for biting other children by "popping" the child on his mouth with her finger. Respondent KAREN PILLSBURY considered this form of discipline appropriate to prevent small children from biting other children. It is accepted practice by some child development professionals that nonexcessive physical contact may be used as a deterrence to prevent children from biting others. HRS has promulgated Rule 10M-12.013(1)(c), Florida Administrative Code, which prohibits any form of physical punishment in a child care facility. As a result of this incident, a complaint was filed with HRS against KAREN PILLSBURY. HRS investigated the complaint and on May 30, 1989, filed an Administrative Complaint against KAREN PILLSBURY d/b/a/ Kinder Kastle Day Care for violations of HRS's child care standards which, as set forth above, prohibit any corporal discipline on a child in a child care facility. As a result of this administrative action, KAREN PILLSBURY was assessed a fine of $100, which was paid on January 16, 1990. In addition to the administrative fine imposed on Kinder Kastle, on September 29, 1989, as a result of this incident, HRS also proposed to confirm a report of child abuse against Respondent KAREN PILLSBURY for using excessive corporal punishment. Respondent did not seek administrative review of HRS's decision to classify the report as confirmed child abuse. Instead, Respondent applied for an exemption to continue working in a child day care facility. Respondent's application for exemption was denied by HRS on November 20, 1989, and Respondent then sought administrative review of HRS's decision to deny her request for exemption filed with DOAH as Case No. 90-007C. During the pendency of the administrative review denying Respondent KAREN PILLSBURY's application for exemption, Respondent continued to have contact with children at her child care facilities. HRS thereafter filed an Emergency Complaint seeking injunctive relief against Respondent in circuit court, (Case No. CA90-912, Fla. 12th Cir.), and on March 26, 1990 an injunction was issued by the court prohibiting Respondent from being present at Kinder Kastle or Whitfield Academy. Prior to hearing scheduled in the administrative case, HRS and Respondent KAREN PILLSBURY, on May 22, 1990, entered into a stipulated settlement, under the terms of which HRS agreed to grant Respondent an exemption to work at child day care facilities, and Respondent agreed to dismiss the administrative action, receive counseling with regard to alternative ways to modify a child's behavior without the use of corporal punishment, and obtain instruction in social behavior modification. Respondent KAREN PILLSBURY has complied with the terms of the stipulated settlement in DOAH Case No. 90-007C. On June 4, 1990, the circuit court injunction against Respondent was set aside, and Respondent resumed her duties at Kinder Kastle and Whitfield Academy. Staff/Child Ratio Violations HRS has promulgated Rule 10M-12.002(5)(a)1., Florida Administrative Code, which establishes ratios for personnel to children in child day care facilities. The ratios are dependent upon the ages of the children at the facility. During inspections of child day care facilities HRS staff observe the number of children being supervised by facility personnel and record the ratios. HRS staff does not personally check the ages of the individual children in a supervised group, but relies on personal observation as well as the representations made by the facility personnel to determine the ages of the children and whether the ratios are appropriate. Since 1989, WHITFIELD ACADEMY has been cited by HRS for staff/child ratio deficiencies on at least twelve occasions. On September 14, 1989, during a routine quarterly inspection at WHITFIELD ACADEMY, an HRS inspector observed there was one staff member for fourteen children between the ages of one year and two and one half years. The HRS staff/child ratio at that time required one staff member for eight children aged one to two years old and one staff member for twelve children aged two to three years old. The inspection report cited WHITFIELD ACADEMY for this deficiency. At the reinspection of the facility on October 2, 1989, the ratio for this group of children remained at one staff member to fourteen children, and had not been corrected. At reinspection on October 16, 1989, the deficiency was corrected. On April 11, 1990, during the investigation of a complaint filed against WHITFIELD ACADEMY, HRS cited the facility for a staff/child ratio deficiency because two staff members were supervising a group of thirty-eight children who appeared to be of varying ages ranging from three to five years old. The inspection report cautioned WHITFIELD ACADEMY with respect to mixing children of different ages in supervised groups. Upon reinspection by HRS staff on April 25, 1990, this deficiency was corrected. As a result of a complaint filed against WHITFIELD ACADEMY, an inspection was also conducted on April 25, 1990, regarding the staff/child ratio for younger children. At that time HRS staff observed twelve children who appeared to be from under one year old to two years old in the care of one staff member. The staff/child ratio required for children under one year old was one staff member to six children, and for children of one year of age was one staff member for eight children. WHITFIELD ACADEMY was cited for this deficiency. Upon reinspection by HRS staff on May 2, 1990, this deficiency was corrected. On July 11, 1990, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervising fourteen children, some of whom appeared to be under one year old. Upon reinspection on July 25, 1990, this deficiency was corrected. The staff/child ratio deficiencies at WHITFIELD ACADEMY did not reoccur until March 31, 1992. At that time an HRS inspector cited the facility as deficient when the inspector observed one staff member supervising seven children under the age of one year old in the nursery for a short period of time, approximately twenty to thirty minutes. The required staff/child ratio at that time was one staff member to six infants. Upon reinspection on April 14, 1992, this deficiency was corrected. On August 4, 1992, HRS again cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise seven infants for a short period of time when another staff member was on leave. Upon reinspection on September 10, 1992, this deficiency was corrected. On January 14, 1993, a complaint was filed with HRS against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY for a staff/child ratio deficiency of one staff member for eight infants under one year old. The deficiency lasted for approximately one hour. In addition, the complaint alleged that on one occasion a staff member left children in the toddler area alone to obtain records for a health nurse, and that two children were sleeping out of the sight of a staff member. As a result of this complaint, on March 10, 1993, administrative action was taken against Respondents, and a fine in the amount of $250 was assessed. Respondents paid the fine on April 8, 1993. On April 21, 1993, Respondents submitted a corrective action plan to HRS to address the problems identified in this complaint. On August 18, 1993, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency for having one staff member supervise five infants under one year old. At this time the required ratio had changed from one staff member to six infants, to one staff member to four infants. Upon reinspection on September 1, 1993, this deficiency was corrected. On February 9, 1994, HRS cited WHITFIELD ACADEMY for a staff/child ratio deficiency when an inspector observed two toddlers among a group of older children in the playground. This deficiency was immediately corrected. On March 29, 1994, and on April 20, 1994, HRS received complaints that on two separate occasions the staff/child ratios at WHITFIELD ACADEMY were improper because of the mixing of children of different ages. The allegations of the complaints were verified by HRS, and an administrative fine was assessed against WHITFIELD ACADEMY in the amount of $300 on May 12, 1994. The fine was paid on August 18, 1994. On February 23, 1995, HRS initially cited WHITFIELD ACADEMY for a staff/child ratio deficiency; however, on the same date, when the age of the child in question was verified by reviewing the facility's records, this citation was found to be without basis. On March 23, 1995, HRS cited WHITFIELD ACADEMY for a staff/child deficiency for having one staff member for seventeen children ages two and three when the required ratio was one staff member for eleven two year olds and one staff member for fifteen three year olds. Upon reinspection on April 11, 1995, this deficiency was not corrected. Upon another reinspection on April 21, 1995, this deficiency was corrected. WHITFIELD ACADEMY has experienced difficulty in retaining qualified staff. Some instances of noncompliance with staff/child ratios resulted from staff at the facility being ill, taking breaks, and the failure of staff to report for work. Except for the citations issued on September 14, 1989, and March 23, 1995, all instances of staff/child ratio deficiencies at WHITFIELD ACADEMY were corrected in a timely manner. Failure to Provide Direct Supervision On six occasions WHITFIELD ACADEMY has been cited by HRS for failure to comply with departmental rules governing direct supervision of children at a child day acre facility. HRS has promulgated Rule 10M-12.005(5)(a)2., Florida Administrative Code, which requires personnel at a child day care facility to watch and direct the children's activities with close proximity, within the same room or enclosed outdoor play area, and to be present with the children at all times during the day, including during meals, nap time, and snack time. On September 14, 1989, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because a staff member at the facility was going in and out of her classroom to assist another staff member at snack time. Upon reinspection on October 2, 1989, the HRS inspector observed children left alone at the facility, and determined that this deficiency had not been corrected. Upon a further reinspection on October 6, 1989, the deficiency was corrected. On April 11, 1990, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because children were being allowed to leave the playground to go inside to use the bathroom unattended by a staff member. This deficiency was corrected at reinspection on April 25, 1990. On August 4, 1992, HRS cited WHITFIELD ACADEMY for failure to provide direct supervision because volunteers at the facility were being allowed to supervise children out of the presence of a trained staff member. At reinspection on September 10, 1992, this deficiency was corrected. As set forth in Paragraph 23, above, the complaint filed on January 23, 1993, against Respondents WHITFIELD ACADEMY and KAREN PILLSBURY alleged, in addition to a staff/child ratio deficiency, a failure by Respondents to provide direct supervision, in that on one occasion a child was left unattended when a staff member retrieved records for a health nurse, and further alleged that during nap time, some children could not be directly observed by facility staff. This complaint was verified by HRS and resulted in an administrative fine of $250, which Respondents paid on April 21, 1993. Respondents also submitted a corrective action plan which addressed these problems. On August 3, 1994, HRS received a complaint that children at WHITFIELD ACADEMY were not being supervised because one staff member was observed sleeping, and another staff member would, on occasion, leave the room. On August 11, 1994, HRS sent WHITFIELD ACADEMY a warning letter concerning the complaint, and by August 29, 1994, Respondents took corrective action, including dismissal of the staff member found sleeping. On December 19, 1994, HRS received a complaint against WHITFIELD ACADEMY alleging that a five month old child, while strapped in an infant chair, was pushed off a table by a one year old child and received a concussion. The complaint alleged that the two staff members present at the time of the incident were not watching the children. This incident occurred because a child had spilled milk, and one staff member was momentarily involved in cleaning up the spilled milk. The infant was not seriously injured. Improper Storage of Dangerous Chemicals Beginning in 1989, HRS has cited WHITFIELD ACADEMY for improper storage of dangerous chemicals on thirteen occasions. In this respect, HRS has promulgated Rule 10M-12.003(1)(d), Florida Administrative Code, which requires that cleaning supplies, flammables, and other potentially poisonous or dangerous supplies be kept out of the reach of children, and in such a manner as to insure the safety of children. The thirteen citations issued by HRS against WHITFIELD ACADEMY for this deficiency largely result from a failure to lock a supply storage room door at the facility. The supply storage room at the facility is located next to the boys' bathroom and contains cleaning supplies, as well as cans of paint. The supplies and paint are stored on shelves beyond the reach of children. On September 14, 1989, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on October 2, 1989. On November 13, 1989 during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed a can of Lysol spray disinfectant on the toilet tank in the toddler bathroom. This deficiency was corrected at reinspection on November 30, 1989. On February 20, 1990, during a routine quarterly inspection of WHITFIELD ACADEMY, HRS staff observed the door to the supply storage room unlocked. This deficiency was corrected at reinspection on March 6, 1990. During the inspection of WHITFIELD ACADEMY conducted on April 11, 1990, as set forth in Paragraph 18, above, the supply storage door was not locked. This deficiency was corrected at reinspection on April 25, 1990. At a routine quarterly inspection of WHITFIELD ACADEMY on July 11, 1990, items used for crafts, such as paint and hair spray, were observed in an unlocked cabinet in the playroom. This deficiency was corrected at reinspection on July 25, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on October 16, 1990, the door to the supply storage room was unlocked. This deficiency was corrected at reinspection on October 30, 1990. During a routine quarterly inspection of WHITFIELD ACADEMY on January 9, 1991, the door to the supply storage room was unlocked. This deficiency was not corrected at reinspection on January 24, 1991, but was corrected at reinspection on February 7, 1991. On May 31, 1991, during a food service inspection at WHITFIELD ACADEMY, cleaning chemicals were observed stored over a food preparation counter. At reinspection on June 17, 1991, this deficiency was corrected. Except for the January 9, 1991 citation, all storage deficiencies relating to storage of cleaning supplies and other such materials were corrected in a timely manner. Children at WHITFIELD ACADEMY did not have access to cleaning supplies, flammables, or other potentially poisonous or dangerous chemicals. Pest Control Deficiencies On three occasions since 1989, WHITFIELD ACADEMY has been cited for failure to maintain appropriate sanitation due to problems with pest control. On each occasion evidence of roaches was found at the facility. On January 24, 1991, HRS conducted an inspection of WHITFIELD ACADEMY in response to two complaints filed with the department which alleged that evidence of roaches had been observed at the facility, and that the facility did not conduct appropriate fire drills.. During the inspection, live roaches were observed in the kitchen, behind the soda machine, and in cabinets above and beside the sink. This deficiency was classified as a major infestation. At reinspection on February 8, 1991, the deficiency had been corrected. During a routine food inspection at WHITFIELD ACADEMY on May 31, 1991, live roaches were observed in three different areas. This deficiency was classified as a significant infestation. A routine quarterly inspection conducted on June 6, 1991 also showed evidence of live roaches in the nursery and playroom. At reinspection by the food inspector on June 17, 1991, the deficiency had been corrected, and reinspection again by HRS on July 5, 1991, confirmed that the problem was corrected. All deficiencies cited by HRS against WHITFIELD ACADEMY relating to maintaining proper pest control were corrected in a timely manner. Failure to Designate Staff In Charge On two occasions since 1989, HRS cited WHITFIELD ACADEMY for failure to designate a staff member left in charge of the facility contrary to Rule 10M- 12.002(2)(a), Florida Administrative Code, which requires that when the operator of a facility is absent, a person over 21 years of age must be in charge of, and present at the facility at all times. On October 14, 1992, an HRS food service inspector during a routine inspection of WHITFIELD ACADEMY was unable to locate a specific staff member at the facility willing to accept the food service inspection report. At the time of the inspection KAREN PILLSBURY was absent from the facility. The report was eventually accepted and signed for by Connie Jimenez, an employee of the facility at that time, who was more than 21 years of age. On May 10, 1994, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to designate a person in charge. The HRS inspector did not observe or review a posted list of employees of the facility to determine if any employee had been designated in charge at that time. This deficiency was corrected at reinspection on May 24, 1994. Respondent KAREN PILLSBURY, the operator of WHITFIELD ACADEMY, posts a list of employees in her office which designates the employee in charge in her absence. Because of the chronic problems encountered during inspections by HRS at WHITFIELD ACADEMY, employees of the facility were reluctant to acknowledge responsibility for the facility and accept HRS inspection reports. Fire Code Violations On January 24, 1991, in response to the complaints described in Paragraph 48, above, a deputy fire marshal with the Southern Manatee Fire & Rescue District, verified that WHITFIELD ACADEMY did not comply with appropriate fire code standards in that the employees were not properly trained in fire drill procedures, the fire drill log was not properly completed, and the fire drill log inaccurately reflected that fire drills had been regularly conducted at the facility. These deficiencies were corrected at reinspection on February 8, 1991. Premises Safety Hazards On October 10, 1990, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain outdoor equipment free from hazards. This deficiency was cited because of a shattered window pane glass located on the side of the building next to the playground. At reinspection on October 30, 1990 the deficiency had not been corrected. The deficiency had been corrected by reinspection on November 13, 1990. Respondents replaced the shattered window pane glass with a shatterproof new window which required a special order. The delay in correcting this deficiency was caused by the shipping time for this special order. Unsanitary Conditions On February 23, 1995, during a routine quarterly inspection, HRS cited WHITFIELD ACADEMY for failure to maintain adequate toilet facilities in violation of Rule 10M-12.003(6)(b), Florida Administrative Code, because of a clogged toilet in the boys' bathroom. The toilet was clogged again at reinspection on March 9, 1995. At reinspection on March 23, 1995, this deficiency was corrected. Children at WHITFIELD ACADEMY occasionally placed items in the toilets. Respondents cleaned and unclogged the toilets on a timely basis. The incident described in Paragraph 59, above, resulted from a child. Corporal Punishment On or about August 17, 1994, an abuse report was filed with HRS alleging that an employee of WHITFIELD ACADEMY used corporal punishment in the discipline of her own child who was attending the facility. The report further alleged that the corporal punishment was inflicted on the child with the permission of Respondent KAREN PILLSBURY in violation of Rule 10M-12.013(1)(c), Florida Administrative Code. This incident resulted in a proposed confirmed report of abuse. Respondent KAREN PILLSBURY did not authorize or otherwise permit the infliction of corporal punishment by an employee of WHITFIELD ACADEMY in the discipline the employee's child on or about August 17, 1994. Nonconstructive Discipline During a routine quarterly inspection on April 7, 1995, HRS cited WHITFIELD ACADEMY for subjecting a child to severe, frightening or humiliating discipline in violation of Rule 10M-12.013(1)(b), Florida Administrative Code. At this time an employee was attempting to restrain a child from biting other children, and was overheard by an HRS investigator to say to the child, "Are you crazy, are you out of your mind?" Respondent KAREN PILLSBURY was not present at the facility when this incident occurred. Respondent KAREN PILLSBURY took remedial measures to address this incident with the employee, and upon reinspection on April 21, 1995, this deficiency was corrected. Hepatitis A Outbreak At the end of July of 1992, twenty-one cases of Hepatitis A, a highly infectious disease, were reported in Manatee County, Florida. At least one reported case was related to a child who had formerly been in attendance at WHITFIELD ACADEMY. The Manatee County Public Health Unit determined that in addition to the former attendee at the facility, thirteen of the other twenty- one reported cases had an association with WHITFIELD ACADEMY. There were no confirmed cases of Hepatitis A found in children in attendance at WHITFIELD ACADEMY, nor in any employees of the facility at that time. As a result of the association of reported cases of Hepatitis A with WHITFIELD ACADEMY, Manatee County Public Health officials recommended that preventative measures be taken at the facility, and that attendees and employees of the facility be tested for immunity to the disease, and if not immune receive Immune Globulin injections. Notifications were also sent to the parents of attending children. Arrangements were made with Manatee County Public Health to provide Immune Globulin injections at WHITFIELD ACADEMY. On the day the injections were given, there was insufficient Immune Globulin available to provide immunizations to all attendees, parents, and employees of the facility, including the Respondents and their family, who had requested the injections. Persons unable to obtain injections at the facility were instructed to contact the Manatee County Public Health Unit; however, there were further problems with obtaining sufficient Immune Globulin which resulted in delays in the inoculation of some of those persons requesting the treatment. Respondents and their family members were inoculated with Immune Globulin. As a result of the initial failure of the Respondents to receive Immune Globulin, and other problems relating to the recommendations for preventative measures at the facility, on August 7, 1992, HRS instituted proceedings in circuit court, Case No. CA-92-003149, Fla. 12th Cir, seeking a temporary restraining order against WHITFIELD ACADEMY from operation for at least sixty days. To resolve this action, WHITFIELD ACADEMY agreed to close from August 12, 1992 through August 23, 1992, to complete a terminal cleaning of the facility by August 24, 1992, to continue immunizations for at least six weeks after any reported case of Hepatitis A was associated with the facility, and to implement certain sanitation measures. The agreement was incorporated into an Order entered by the circuit court on August 24, 1992. Respondents complied with the terms of this agreement. Respondents reasonably cooperated with HRS officials in addressing the problems associated with the outbreak of Hepatitis A in July of 1992. Subsequent to August 24, 1992, there were no confirmed reports of cases of Hepatitis A associated with WHITFIELD ACADEMY. Other Violations On October 30, 1990, an employee of WHITFIELD ACADEMY informed HRS inspectors that a reinspection of the facility could not be conducted until Respondent KAREN PILLSBURY returned. After being shown Section 402.311, Florida Statutes, which authorizes HRS inspections, the employee allowed the inspectors to conduct a partial reinspection. Upon Respondent's return, an inspection was completed. This violation has not reoccurred. During a routine inspection on September 11, 1990, HRS cited WHITFIELD ACADEMY for failure to maintain proper medical examination certificates or immunization records in violation of Rule 10M-12.008, Florida Administrative Code. This deficiency was not corrected at reinspection on September 28, 1990; however these records were subsequently brought into compliance. As a result of the continuing problems at WHITFIELD ACADEMY relating to the record-keeping and other deficiencies, two meetings were conducted on April 16, 1991, with HRS representatives and Respondents and their counsel, at which time agreement on a course of action for resolving these problems was reached. Respondents have made a reasonable effort to comply with this agreement.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A Final Order be entered finding that the charges against Respondents ELMER ROGER PILLSBURY, KAREN PILLSBURY, and WHITFIELD ACADEMY are insufficient to warrant licensure revocation, and that the Administrative Complaint filed against Respondents be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 29th day of November, 1995. APPENDIX As to Petitioner's Proposed Findings 1 - 2. Accepted and Incorporated. 3 - 5. Accepted and Incorporated except that Respondent also has complied with the terms of the settlement agreement. 6 - 7. Accepted and Incorporated except that the deficiencies were corrected. 8. Accepted, except that Respondents and their counsel agreed to cooperate with HRS to remedy the problems. 9 - 15. Accepted and Incorporated, except that the cited deficiencies were corrected. 16. Accepted, except that the replacement glass was on special order, and the problem was corrected. 17 - 25. Accepted, except that the deficiencies were corrected. 26. Accepted, except that Respondents reasonably cooperated with health officials and were finally inoculated. 27 - 35. Accepted and Incorporated, except that the deficiencies were corrected. Rejected to the extent that Respondent authorized corporal punishment. Rejected as irrelevant. 38 - 42. Accepted and Incorporated, except that the deficiencies were corrected. COPIES FURNISHED: Raymond R. Deckert, Esquire DHRS, District 6 Legal Office 4000 W. Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614 Earl W. Baden, Jr., Esquire 1101 Sixth Avenue West Post Office Box 1907 Bradenton, Florida 34206 Robert L. Powell, Agency Clerk DHRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of June, 2019.
The Issue The issue for determination in this proceeding is whether Respondent failed to maintain direct supervision of four minor children and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating child day care facilities in Florida. Respondent is licensed as a child care facility within the meaning of Section 402.302(4), Florida Statutes. 1/ Respondent is licensed to care for 36 children, ages 0-12, pursuant to license number 994-39. Ms. Augustina Peash is the owner of Augustina Academay within the meaning of Section 402.302(7). Ms. Peash operates Augustina Academy at 1307 Pinehills Road, Orlando, Florida, 32808. On April 7, 1995, Petitioner conducted a quarterly inspection of Respondent. Four children were alone with no direct supervision. Two children were sweeping the kitchen. Another child was alone in a classroom. An infant was alone in a crib in a room adjacent to the director's office. Ms. Augustina Peash was in the director's office. The potential harm to the children was not severe within the meaning of Section 402.310(1)(b)1. All of the children were on the premises of Augustina Academy and within close proximity of supervising personnel. The period in which Respondent failed to maintain direct supervision of the children was not substantial. Respondent's employees corrected the failure immediately. Respondent's failure to maintain direct supervision of the children did not result in any actual harm to the children. Respondent has a history of prior discipline within the meaning of Section 402.310(1)(b)3. On November 7, 1994, Petitioner cited Respondent for a similar violation. Petitioner informed Respondent in writing of the violation
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the charges in the Administrative Complaint and imposing an administrative fine of $100. RECOMMENDED this 5th day of January, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 5th day of January, 1996.
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
