The Issue The issue addressed in this proceeding is whether Respondent's child care facility license should be disciplined for alleged violation of chapter 402, and if so the appropriate penalties. Neither party timely submitted Proposed Recommended Orders.
Findings Of Fact Respondent Donna J. Downing owns and operates a child care facility known as the Downing House, located at 8508 Lorento Street, Panama City, Florida. The child care facility is also her family's residence. She lives with her husband, son, and daughter who help operate the facility and who have been successfully screened by HRS. Ms. Downing was licensed in 1985 and holds a currently valid license. Her license is endorsed to allow her to operate her facility during nighttime hours. In April 1988, HRS became concerned that the operation of the Downing House into the night was proving too much for the husband and wife team, since HRS regulations require an adult to be present and awake during the night. HRS, therefore, inquired of the Downings concerning their proposed arrangements to ensure the presence of an awake adult. In order to continue to operate into the night, Respondent assured HRS that either she or her husband would be awake during the night while children were present on the premises. However, the evidence established that Respondent and her husband did not always live up to Respondent's representation to HRS. A standard mode of operation by Respondent was for both she and her husband to retire in the evening, leaving the front door unlocked so that the children's parents could pick up their children without disturbing the Downings. However, occasionally one of the Downings would stay up with the children. On May 5, 1988 a two year old male child was left at the Downing House by his mother for nighttime caretaking. At approximately 11:00 - 11:15 pm., Mr. and Ms. Downing had gone to bed. There were three children present at the Downing House when the Downings retired, including the two year old male child. The three children were asleep when Ms. Downing left them in the living room. No other adults were present. Ms. Downing had made arrangements for her adult son to look after the children when he got home from work. He was expected home at about 11:30 p.m. The son arrived home at approximately 11:40 p.m. When he arrived there were two children present. No method had been established by Respondent to advise her son of the number of children who should be present when he arrived home. He therefore did not realize that one child was missing. The son laid down on the couch in the living room and went to sleep. Sometime between the Downings going to bed and the arrival of their son, the two year old male child awakened, opened the front door and left the house. The child then unlatched the front yard gate and headed down Lorento Street towards its intersection with Laurie Lane. He then proceeded down Laurie Lane. At approximately 11:15 p.m., Denise Albert was driving down Laurie Lane. About two tenths of a mile from the Downing House, at 2414 Laurie Lane, Ms. Albert saw the missing child walking down the unlit and unpaved road. He was barefoot and in his pajamas. Ms. Albert stopped and questioned the child for 15 or 20 minutes. She could not obtain any information. She therefore called the Sheriff's office. Officer Troy Johns was dispatched at 11:30 p.m. The officer picked the child up from Ms. Albert and drove him around the neighborhood, including Lorento Avenue. The child could not or would not identify where he had come from and would not give his name. The child was more interested in the officer's gun and vehicle than in his surroundings. The officer took the child to the Sheriff's station and called HRS. Debra Young an HRS protective services investigator took the call and picked the child up from the Sheriff's office. She also could not establish the child's identity or address. She placed the child in a foster home. At 4:11 a.m. the Sheriff's office received a phone call in reference to a missing male child from the Downing House. The missing child was the child the Sheriff's office had turned over to Ms. Young. The Sheriff's office contacted Ms. Young. Mother and child were reunited the next morning. The call to the Sheriff's office from the Downing House had been prompted when the child could not be found after a search. The search ensued when, at approximately 3:00 a.m., the mother arrived to pick up her son. She discovered his absence and woke Respondent's son who in turn woke Mr. and Ms. Downing. One child remained. A second child had been picked up at approximately 2:30 a.m. by that child's mother. The son did not awaken and was not aware that the second child had been taken from the room in which he was asleep. The Downings searched the neighborhood for the missing child, including checking the Lagoon which is within a few blocks of the Downing House. The call to the Sheriff's office located the child. From 1985 until May 1988, Respondent was cited for the following violations of chapter 402, F.S. and the rules related thereto: September 3, 1985 Two gates in the play yard were left unlocked making it possible for children to have access to the road, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code, in that this was an obvious hazard. Medicine was left on the kitchen cabinet within the children's reach, in violation of Rule 10M-12.003(1) and (d), Florida Administrative Code. April 22, 1986 Cleaners were on the washer and dryer within the children's reach and Lysol and Windex were on the kitchen cabinet with food within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. No fire drills, in violation of Rule 10M-12.003(8)(a), Florida Administrative Code. October 1, 1987 Clorox, detergent, charcoal, briquettes, pliers, plastic bags, cigarette and cough drops were out at several locations throughout the facility and within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. An iron was left with the cord hanging over the table within the children's reach making it possible for the iron to be reached and pulled down on top of a child, in violation of Rule 10M- 12.003(1)(a), Florida Administrative Code. March 23, 1988 A medicine bottle containing medicine and tanning accelerator within the children's reach were located inside the facility and rose dust, Progreen, Spectracide ant killer and touch up paint were at several locations on the porch at the main entrance within the children's reach, in violation of Rule 10M-12.003(1)(b) and (d), Florida Administrative Code. Suntan lotion and tanning accelerator and three sand filled milk cartons, all located on the patio at the back of the house leading to the play yard and all within the children's reach, in violation of Rule 10M-12.003 (1)(b) and (d), Florida Administrative Code. The gate to the play yard was unlocked allowing children access outside the play area, in violation of Rule 10M- 12.003(4)(b), Florida Administrative Code. The store room containing a lawn mower and other tools and hazardous materials was left unlocked, in violation of Rule 10M-12.003(4)(b) , Florida Administrative Code in that it was an obvious hazard, with the children having access to said store room. A throw rug was on the steps leading to the patio and was not secure making an obvious hazard, in violation of Rule 10M-12.003(4)(b), Florida Administrative Code. To Respondent's credit, all of the above violations were corrected within the time frames established by HRS. No fines were ever levied on the Respondent for the above violations. Also, to Respondents credit, the evidence disclosed that Respondent is generally a good caretaker of children.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Health and Rehabilitative Services revoke the nighttime operation endorsement on Respondent's license and impose an administrative fine of $1000. DONE and ENTERED this 14th day of March 1989, in Tallahassee, Lean County, Florida. DIANE CLEAVINGER 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 14th day of March, 1989. COPIES FURNISHED: John L. Pearce, Esquire 2639 North Monroe Street Suite 200-A Tallahassee, Florida 32302 Donna J. Downing 8508 Lorento Street Panama City, Florida 32407 R. S. Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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 in this case are whether Respondent, a child care facility operating under a probation-status license, violated the terms of probation by committing three Class II Violations, as Petitioner alleges, and if so, whether the license should be suspended or revoked; and, alternatively, whether, if Respondent committed the alleged Class II Violations (or any of them), Petitioner should deny Respondent's application for renewal of license.
Findings Of Fact Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz"), holds a probation-status Certificate of License, numbered C11MD1914, which authorizes the company to operate a child care facility in Palmetto Bay, Florida, for six months, from September 2, 2017, through March 1, 2018. The licensee does business under the name Wiz Kidz Learning 2. As the operator of a licensed child care facility, Wiz Kidz falls under the regulatory jurisdiction of Petitioner Department of Children and Families ("DCF"). At the time of the final hearing, Wiz Kidz had been a probation-status licensee for more than six months. DCF had converted Wiz Kidz' license to probation status effective June 29, 2017, after finding Wiz Kidz guilty of violating the staff-to-child ratio rules four times in a two-year period, as charged in an Amended Administrative Complaint dated May 25, 2017, which Wiz Kidz had not contested. The conditions of probation were that Wiz Kidz would pay all outstanding fines, not violate the staff-to-child ratio rules again, not commit any other Class I or Class II Violations while on probation, and submit to biweekly inspections. Wiz Kidz' initial probation-status license had been due to expire on September 1, 2017. Shortly before that date, however, Wiz Kidz had submitted a renewal application, which meant that, by operation of law, the probation-status license would not expire until DCF had finally acted upon Wiz Kidz' application for renewal.2/ Instead of simply allowing Wiz Kidz to operate on the "unexpired" license, however, DCF issued a new probationary license to Wiz Kidz effective from September 2, 2017, to March 1, 2018, which essentially renewed the initial probation-status license for another six-month period of probation.3/ On August 17, 2017, DCF employees Claudia Alvarado Campagnola and Quendra Gomez conducted an inspection of the Wiz Kidz facility between the hours of 9:00 a.m. and 2:00 p.m., during which they observed three alleged incidents of noncompliance with "Class II" (mid-level) licensing standards, namely: (1) storing a toxic substance in a place accessible to children; (2) failing to provide adequate direct supervision; and (3) failing to possess a current attendance record during a fire drill. On September 26, 2017, DCF issued to Wiz Kidz a Notice of Intent to Deny Child Care Facility Licensure, which gave notice that DCF planned to deny Wiz Kidz' pending application for renewal of license because, on August 17, 2017, Wiz Kidz had been "cited for 3 class II violations and 7 class III violations in direct violation of [its] probationary license terms." The "toxic substance" seen on August 17, 2017, was an alcoholic beverage. Upon entering the facility, Ms. Gomez noticed two unopened bottles of champagne at the back of a shelf, behind (and partially obscured by) a large plastic toy and other items. There is no photograph of the shelf in evidence, and the descriptive testimony lacked precision; as near as the undersigned can tell, this shelf was several feet long, about one foot deep, and mounted about five feet high on one of the classroom walls. One detail is not disputed: the shelf was above the heads of even the oldest children in care (between the ages of six and seven years). Thus, even if a child could have seen the bottles, he would not have been able to take possession of them without deliberate effort; because the bottles were well out of reach, the child would have needed to stand on a stepladder or its equivalent (e.g., a suitable chair) to get his hands on them. There is no evidence that a stepladder was available. Ms. Gomez testified that a child could have pulled over a chair and climbed on it to reach the champagne bottles. Perhaps so. On the other hand, while the undersigned can reasonably infer that there were chairs in the classroom, he cannot reasonably infer that any of them would have been fit to enable a child to access the bottles. To establish the element of "accessibility" based on the theory that a chair could be used as a stepladder, DCF needed to prove that a suitable chair was actually there for a child present in the classroom to use. This it failed to do. There is no evidence regarding the dimensions of the available chairs, nor any evidence concerning the heights of the children. The witnesses provided only a rough idea of the height of the shelf; their reasonably consistent accounts constitute clear and convincing evidence of the general fact that the shelf was higher than the kids' heads, but not of the actual measurement. Absent proof of these material facts, Ms. Gomez's testimony regarding the way a child could have gotten hold of the champagne bottles is too speculative to support a finding that these items were, in fact, physically accessible to the children. In addition, there is no evidence suggesting that a child could have dragged a chair over to the shelf and clambered up without attracting the attention of an adult. Given that the shelf was located in the classroom, the undersigned infers that no child reasonably could have pulled this off, unless the adult in the room were asleep at the switch. Finally, it is worth mentioning that if a child were able to stand on a chair and grab a champagne bottle without being caught, he still would not have access to the "toxic substance" in the bottle unless he could somehow pour it out. There is no evidence in the record concerning how one opens a champagne bottle, but common experience teaches the undersigned that a young child (the children in care were less than eight years old) likely would have difficulty twisting out the cork. In any event, DCF failed to prove that any of the children at Wiz Kidz reasonably could have popped the cork on the champagne, and therefore it failed to prove that the champagne was accessible to a child. The other two alleged violations occurred during a fire drill, which the inspectors required Wiz Kidz to conduct, in their presence, during the children's nap time. Three children exited the facility in their bare feet. The area where the children were assembled after evacuating the "burning building" was near a dumpster; some litter and tree branches were on the ground. From these facts, which were not seriously disputed, DCF infers that the children were not adequately supervised. The undersigned rejects this inference, which does not reasonably and logically follow from the basic facts. To begin, there is no rule that requires children always to wear shoes. Thus, that some of the children had removed their footwear before taking a nap is of no concern. When the alarm went off, staff evidently did not make these children pause to put their shoes back on, which would have protected their feet——but delayed their exit. To be sure, it is probably a good practice, generally speaking, to prevent young children from going outside barefoot. Clearly, however, it is best not to let them perish in a fire; in an emergency, getting to safety is the highest priority. Because the purpose of a fire drill is to simulate an actual emergency, the fact of the barefoot children prompts undersigned to infer, not that staff failed to provide adequate supervision, but that staff facilitated the speediest escape under the circumstances. During the fire drill, one of the teachers failed to take along a current attendance record when leaving the building, which (unlike the wearing of shoes) is mandated by rule. Ultimate Factual Determinations Wiz Kidz is not guilty of storing a toxic substance in a place accessible to children because the evidence failed to establish an incident of noncompliance with Florida Administrative Code Rule 65C-22.002(1)(f). Wiz Kidz is not guilty of failing to provide adequate direct supervision because the evidence failed to establish an incident of noncompliance with rule 65C-22.001(5)(a). The undersigned determines, based upon clear and convincing evidence, that a staff member failed to possess a current attendance record during a fire drill, which constitutes an incident of noncompliance with licensing standard No. 33-12, which implements rule 65C-22.002(7)(e). This was Wiz Kidz' first occasion of noncompliance with licensing standard No. 33-12.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Wiz Kidz not in violation of the terms of probation. It is further RECOMMENDED that Wiz Kidz' application for renewal of license not be denied based on the commission of a Technical Support Violation. DONE AND ENTERED this 20th day of March, 2018, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 March, 2018.
The Issue Whether sufficient grounds exist to justify denial of Petitioner's license renewal application to operate a child care facility.
Findings Of Fact Based on the persuasive and credible evidence presented, the undersigned concludes that: The Department proved that the violations outlined in the September 25, 2015, "Checklist" (Department's Exhibit 3) existed on September 25, 2015. Further, that on October 1, 2015, it was clear under section 402.308 that all standards required by sections 402.301 through 402.319 and chapter 65C-22 had not been met. Petitioner had not corrected any of the Checklist violations as of October 1, 2015, and several material violations, which justify disciplinary action, existed and were still not corrected by October 9, 2015. Based on the credible and persuasive evidence, the undersigned finds that the Class I violation under section 14-04 of the "Checklist" was not brought into compliance by October 9, 2015. Nonetheless, the undersigned is constrained by the explicit and clear provisions of rule 65C-22.010, which sets forth a mandatory progressive disciplinary scheme that the Department was obligated to follow. This rule was created by and must be read in pari materia with the enabling statute, section 402.310(1)(c), which provides: The department shall adopt rules to: 1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301-402.319. (Emphasis added). The rule adopted to implement this provision, 65C-22, expressly provides that a license may only be revoked or denied for a Class I violation for the third or fourth violation in a two-year period.19/ Since this was the first Class I violation for Petitioner in a two-year period, the mandatory progressive disciplinary sanctions of rule 65C-22.010(2)(e)1.a. applied and had to be followed. The Department was entitled to impose a fine of not less than $100, nor more than $500 per day, for each violation and had the discretion to impose other disciplinary sanctions in addition to the fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned is constrained by the progressive disciplinary standards mandated by rule 65C-22.010(2)(e)1.a. to recommend the following: Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, be issued its renewal license converted to probation status as permitted by section 402.310(1)(a)2. See Dep't of Child. & Fams. v. Davis Fam. Day Care, Case No. 11-0916 (Fla. DOAH Oct. 25, 2011; Fla. DCF Feb. 8, 2012). As conditions of the probation status, unannounced periodic inspections by the Department should be made, requiring strict compliance with licensing standards. Furthermore, as a condition of probation, adequate monthly pest control and cleaning services must be provided to the extent reasonably necessary to control the problem and eliminate the exposure of children and staff to health or safety concerns. Conversion to probation status should be imposed for a minimum of six (6) months from the date of the Department's final order. Children's Academy Preschool Inc., d/b/a Children's Academy Preschool I, should be assessed a daily administrative fine of $100 for the period from September 25 through October 9, 2015, for a total amount of $1,400, to be paid as a condition of probation within 60 days. In closing, this recommendation comports with the progressive discipline required by rule 65C-22.010. It also strikes the best balance of respecting the legislative intent to provide child care services to the economically disadvantaged, while at the same time protecting the safety and welfare of the children using a child care facility which had been used by the local community for over 15 years. DONE AND ENTERED this 8th day of March, 2016, 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 8th day of March, 2016.
