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.
The Issue The issue in this proceeding is whether Respondent committed the violations as alleged in the Second Amended Administrative Complaint and, if so, what is the appropriate penalty.
Findings Of Fact The Department of Children and Family Services is the agency charged with the responsibility of licensing child care facilities in the State of Florida. § 402.305, Fla. Stat. Respondent was licensed by the Department to operate a child care facility located in Gainesville, Florida. Joyce Vinson is the owner/director of ECCC, and has been since it opened in 2001. Ms. Vinson operated a home daycare for approximately five years prior to opening ECCC. Inadequate supervision--W.G. left behind1/ The Second Amended Administrative Complaint charged Respondent with inadequate supervision of a child in violation of Florida Administrative Code Rule 65C-22.2011(5). Specifically, the complaint alleges as follows: On July 22, 2010, staff members, F.S. and V.L., left a 7 year old disabled child, W.G., behind on a field trip to Duval Elementary. Staff with another provider found the child-who was unable to speak and identify himself-in a field behind the school. Law enforcement was called and the child was later picked up by his parents. Andi Lybrand is the training and curriculum coordinator for the Early Learning Coalition of Alachua County. Ms. Lybrand visited ECCC to observe curriculum and helped coordinate events. Ms. Lybrand organized an event (a play) that was held at Duval Elementary (Duval), to which children from day care centers were invited. Following the performance, a teacher from another facility brought a boy, W.G., into the cafeteria. The boy was found alone in a grassy area behind the cafeteria. He appeared to be upset. W.G. is a child with a disability. Ms. Lybrand placed a 911 call. While this was happening, the van carrying some of the ECCC children began the trip back to the center. Shortly after the van left Duval Elementary, an employee of ECCC, Felita Sallet, performed a head count, and realized that one of the Center's children, W.G., was not on the van. The van then immediately returned to Duval Elementary. A young woman who was an ECCC volunteer was sent into the building to retrieve W.G. Shortly thereafter, an ECCC employee, Vanessa Latson, appeared and advised that she was there to pick up W.G. However, the law enforcement officer who responded to the 911 call would not release W.G. to the volunteer or to Ms. Latson, but would only release the child to a parent. Ms. Vinson then received a call from the school principal, and returned to the school. W.G.'s mother, who did not testify, was notified of the situation and went to Duval to pick up her child. Ms. Vinson and W.G.'s mother left Duval together with W.G. in the mother's car. W.G.'s mother returned W.G. to ECCC for the rest of the day. Up until such time as ECCC was closed due to the Emergency Suspension Order, W.G. remained enrolled at ECCC. The Department's family services licensing counselor, Neshma Cruz-Gil, was advised by W.G.'s mother that she had no concerns for W.G.'s safety while in the care of ECCC. Alice Engram-Hammed, a child protection investigator, investigated this incident and verified findings of inadequate supervision. Transportation violation Ms. Cruz-Gil went to ECCC on July 22, 2010, to further investigate the inadequate supervision allegation set forth above. While there, she cited ECCC with additional violations, including that of transporting more passengers on the ECCC van then the designed capacity. Specifically, the Second Amended Administrative Complaint alleged that on July 22, 2010, two ECCC employees transported 18 individuals (2 adults and 16 children) in a van with a maximum capacity of 15 passengers. This allegation was based upon a determination made by Ms. Cruz-Gil when she arrived at ECCC following the Duval incident. As a family services counselor, Ms. Cruz-Gil is responsible for inspecting child care facilities and family child care homes. ECCC was one of the child care facilities that she inspected. Ms. Cruz-Gil examined a field trip log and interviewed ECCC staff in making her determination that too many people were on the van. The field trip log lists 15 children's names. As there were two staff members and a volunteer on the trip, Ms. Cruz-Gil concluded that there were 18 persons on a van with only 15 seat belts. However, according to Ms. Vinson, the field trip log was not a list of those riding on the van, but of those who attended the play. Three children were transported by car. This was verified by Ms. Sallet, who was on the van for the Duval fieldtrip, and who is "one hundred percent sure" that all of the children riding in the van were properly restrained and secured with seat belts. Ms. Sallet's testimony in this regard is credible and is accepted as fact. Inadequate supervision- May 17, July 22, and July 30, 2010 The Second Amended Administrative Complaint alleges that on July 30, 2010, the Department's licensing counselor observed W.G. in a classroom alone without adult supervision, using a computer; that the same violation occurred on July 22, 2010 (W.G. alone using a computer in classroom unsupervised); and that on May 17, 2010, O.K. was observed alone and unsupervised in a classroom. On May 17, 2010, Sabrina Roper, a speech language pathologist employed by Fundamental Therapy Solutions, Inc. (FTS), was at ECCC along with a speech assistant from FTS. Ms. Roper described Ms. Vinson as very receptive to FTS coming to ECCC to provide speech therapy to those children attending ECCC who were in need of that service, and as an advocate for the children. Ms. Cruz-Gil made a routine inspection of ECCC while Ms. Roper and the speech assistant were there. Ms. Cruz-Gil observed the speech assistant get up and leave the room, leaving the child who was receiving speech services in the room alone. Ms. Roper observed the speech assistant enter the room where Ms. Roper was working to collect materials to use while providing therapy to the child. Ms. Roper described the time the other therapist was in the room with her as "not long." On July 22, 2010, when arriving at ECCC to investigate the Duval incident, Ms. Cruz-Gil observed W.G. alone in a room working on the computer (the "computer room"). She saw the same student alone working on the computer again on July 30, 2010, resulting in citations for this violation on those two dates. Ms. Vinson, however, maintains that she was supervising W.G. in the computer room, that she got up to answer the door when Ms. Cruz-Gil knocked to enter; that the computer room is five feet away from the front door; and that W.G. was only alone in the computer room during the short time it took for her to open the door for Ms. Cruz-Gil. Ms. Vinson added that she did not have a floater that day. Unauthorized administration of medication The Second Amended Administrative Complaint charged Respondent with the following: On or about late June through early July 2010, without parental consent, Respondent's owner and director, J.V., deliberately administered Ex-Lax to a four-year-old child, J.P., making him sick. . . . On or about March through June 2010, the Respondent's owner and director, J.V., deliberately administered Benadryl to infants. These charges were based on allegations made by two former employees of ECCC, Angela Holmes and Caroline Rossman. Angela Holmes works as a teacher's aide at Alachua Academy Juvenile Detention Center. She was previously employed at ECCC from March 1 to June 4, 2010. Ms. Holmes accused Ms. Vinson of a litany of inappropriate actions including giving babies Benadryl to make them sleep. Ms. Holmes alleged that Ms. Vinson sent her to the store with money to purchase liquid Benadryl; that Ms. Vinson kept the Benadryl in her drawer; that she saw Ms. Vinson gave it to infants in the baby room to make them sleep on at least five occasions; and that no one else was in the room when this happened. Ms. Holmes' recollection as to when this happened during her short tenure with ECCC was uncertain and imprecise. Ms. Holmes did not report this to anyone until about two months after she left employment at ECCC. Another of the many inappropriate actions alleged by Ms. Holmes to have been committed by Ms. Vinson involved the unauthorized administration of Ex-Lax to a child. According to Ms. Holmes, Ms. Vinson sent Carolyn Rossman, another former employee of ECCC, to purchase Ex-Lax; that Ms. Vinson asked Ms. Holmes to give Ex-Lax to the child; that Ms. Holmes refused; and that she observed Ms. Vinson give the child Ex-Lax. Caroline Rossman worked at ECCC for a few months, primarily in the infant room. Ms. Rossman was uncertain as to when her employment started and ended. Ms. Rossman testified that Ms. Vinson gave her money to purchase Ex-Lax at the store, and that afterwards, she witnessed Ms. Vinson give the Ex-Lax to a child, JoP. Ms. Rossman was uncertain as to where in the daycare facility this occurred, but described it as "up front." Ms. Rossman was also uncertain as to when this happened during her employment. Generally, Ms. Rossman's testimony was confused as to the facts, imprecise, and not distinctly remembered. Raellen Hale is the mother of JoP and JaP, who attended ECCC for a few months in 2010. According to Ms. Hale, JoP has been diagnosed with global disability disorder, which affects his motor skills, including his bowel and bladder continence. JoP was four years old during the time he attended ECCC. During the last month JoP attended ECCC (May 2010), JoP complained to his mother that his "bottom" and his stomach were hurting, to a point that Ms. Hale took JoP to the doctor. During this period of time, Ms. Hale recalls that Ms. Vinson would call her "where it seemed like every Friday at exactly 12:00" telling her to pick up JoP because he had diarrhea. According to Ms. Hale, JoP's frequent bouts with diarrhea stopped when he stopped attending ECCC. The attendance records, however, reflect no attendance on two consecutive Fridays in May for Ms. Hale's two children. On the other two Fridays in May, Ms. Hale signed JoP out once, and JoP's uncle or father signed him out the other Friday. The attendance records for May 2010 reflect that on the Fridays in May on which her children attended, they were signed out mid-to- late afternoon. According to Ms. Hale, she was not always able to pick up her children right after being called. The records reflect, however, that she only signed her children out of ECCC one Friday in May. Several employees of ECCC who testified describe ECCC in an entirely different light than these, and other related, alleged events. Frewoini Ghevrghergish (referred to by all as "Ms. Frewoini") is employed by ECCC and has been so employed for 10 years, primarily in the toddler room.2/ In addition to working there for 10 years, all four of her children attended ECCC at various ages. Ms. Frewoini never witnessed Ex-Lax or Benadryl administered by Ms. Vinson or by any other staff member. On the contrary, Ms. Frewoini described a procedure that was followed before a child received medication. That is, a parent was required to sign a medication authorization form containing information as to when and how much of a medicine was to be administered. "If they don't sign, we don't give them." Felita Sallet was employed by ECCC from 2008 until it closed in November 2010. Her daughter, who was one-year old in 2008, attended ECCC during that time. Ms. Sallet never had concerns regarding her daughter's care while at ECCC. Ms. Sallet never saw an employee, including Ms. Vinson, give any medication to any child without proper authorization; never heard Ms. Vinson discuss improperly medicating children with Benadryl or Ex-Lax; and noted that giving a child Ex-Lax was counter-productive since the staff is responsible for changing a child that soiled his or her clothes. Irma Hall is a 23-year retired Alachua County School Board employee, who was a Head Start teacher for the school district. She was a volunteer pre-kindergarten (VPK) teacher at ECCC in 2010. Ms. Hall was never asked by Ms. Vinson to give a child medication, nor did she hear of anyone else being asked to do so. Tameka Williams worked at ECCC from June 2010 until the fall of 2010. She was never asked, nor did Ms. Williams hear Ms. Vinson ask anyone else, to improperly medicate any child at ECCC. Ms. Williams never saw any ECCC employee improperly administer any medication to any child at ECCC. Ms. Elise Stewart was employed at ECCC at various times. However, she was not employed at ECCC in the spring of 2010. During the times she was employed there, she never witnessed any employee of ECCC, including Ms. Vinson, give any child Benadryl or any other medication without authorization from the child's parents. Joyce Vinson described the procedure used at ECCC to administer medication to children. The center has medication forms which must be signed by the parent before medication will be administered to any child. Ms. Vinson denied that she ever asked an employee to go to the store to purchase medication; denied ever giving any child any medication without having written parental authorization, including Ex-Lax or Benadryl; and denied calling Ms. Hale every Friday in May 2010 requesting that she pick up JoP because he soiled his clothes. Improper Discipline of a Child The Second Amended Administrative Complaint charged Respondent with the following: On or about May 2010, the Respondent's owner and director, Joyce Vinson, took a disabled four-year-old child, J.P., outside, and in front of other children in care, removed all of his clothing, and hosed him down after he defecated in his pants. J.P. is not toilet trained due to his disability. * * * During the period May through June 2010, the Respondent's owner and director, Joyce Vinson, directed staff not to change J. P. when he defecated in his pull-ups, and repeatedly shut J. P. alone in a bathroom for extended periods of time. This allegation was based primarily on the testimony of Ms. Holmes, who asserts that in May 2010, Ms. Vinson instructed Ms. Holmes to move the children from the playground around the side of the building so they could not see; then Ms. Vinson and Vanessa Latson took JoP outside to the playground, removed his clothes and washed him off with a garden hose after JoP soiled his clothes. Ms. Holmes claims that she and Ms. Sallet witnessed this incident. Ms. Sallet denies ever seeing Ms. Vinson or any other ECCC employee hose down any child who had soiled his clothes. Ms. Sallet further denies ever observing a child disciplined, punished, or shut in a bathroom for soiling his or her clothes. Ms. Sallet described the process used at ECCC by her and other employees for cleaning up children who had soiled their clothes. This process involved using a basin in the bathroom, putting on sanitary gloves, and using wipes as one would use cleaning a baby. The other ECCC employee and volunteer who testified, Ms. Hall and Ms. Williams, also deny ever observing any child being hosed down, or otherwise purposefully embarrassed or humiliated for soiling his or her clothes, at ECCC. Finally, Ms. Vinson denied hosing JoP down to clean him up after he soiled his clothing; denied shutting JoP in the bathroom, or instructing any employee not to change him, or any other child, if he had soiled his clothes. Ms. Hale, JoP's mother, provided pull-ups to ECCC for her son. She typically picked up JoP around 5:00 in the afternoon. On several occasions, he had dried feces on him. In other instances, his pull-up was soaking wet and the diaper would be "full." Tameka Williams was employed by ECCC from June 2010 until sometime in the fall of 2010. When older children soiled their clothes, she would be sent to find clothes. If extra clothes had not been sent from home, ECCC had extra clothes available. Ms. Williams would often be the person who changed the clothing of the children who had soiled their clothes. First, she would clean them with a rag and body soap, wipe them, and put clean clothes on them. She would then put the soiled clothes in a bag, seal it, and let the parents know there were soiled clothes in the bag. Sometimes the clothes needed to be rinsed. Ms. Williams would rinse the soiled clothes, and hang them up. If they were not dry, she would put them in a plastic bag, tie it up, and send it home to the parents. She never witnessed any children being disciplined, with a hose, locked in a bathroom, or by any other method, for soiling their clothes. This was the same procedure described by Elise Stewart, who was employed by ECCC for six years off-and-on. When a child soiled his clothes, she would take the child to the bathroom, clean him or her, rinse the soiled clothes and place them in a plastic bag to go home to the parents. Out of Ratio/Improper Supervision The Second Amended Administrative Complaint charged Respondent with the following: On September 1, 2010 (5th violation), the Department's licensing counselor observed 18 children, including infants, on the playground being supervised by only one teacher and one volunteer; other staff were inside the facility. On August 10, 2010 (4th violation), the Department's licensing counselor observed 8 infants being supervised by only one teacher. During the period of March through June 2010 (3rd violation), the Respondent's staff repeatedly left the infant room unsupervised after the infants went to sleep, so that staff could supervise children or perform tasks in other parts of the facility. On March 24, 2010 (2nd violation), the Department's licensing counselor observed only two teachers supervising a nature walk with four infants and seven two year olds. The Respondent was previously cited and provided technical assistance for this type of violation on February 9, 2009 (twelve children including infants out in the playground with only two staff members). * * * From March through June 2010, the Respondent's owner and director, Joyce Vinson, routinely directed employees to mix age groups in the facility, on the playground and on trips; and to supervise more children than allowed by statute and rule. On March 24, 2010, Ms. Cruz-Gil went to ECCC to investigate a complaint received by phone made by staff of another facility regarding a nature walk that took place on March 12, 2010. After interviewing the staff person who reported this incident, and ECCC staff, Ms. Cruz-Gil determined that the group of children on the nature walk was comprised of a mixed group of three and four-year-olds on the field trip with four infants. Ms. Cruz-Gil determined that ECCC was out of ratio of required staff to children. The testimony regarding the actual number and composition of children on this field trip was confusing and unclear. But, in any event, she did not personally see the composition of staff to children on the field trip, and the field trip did not involve seven two-year olds, or take place on March 24, 2010, as charged. The allegation that during March through June 2010, Respondent's staff repeatedly left the infant room unsupervised when the infants were asleep, so that staff could supervise other children or perform other tasks, was based largely on allegations from Ms. Holmes and Ms. Rossman. According to Ms. Holmes, she was instructed by Ms. Vinson, on a daily basis, to leave the children she was supervising to clean another part of the facility, or to leave the infants alone in their cribs and supervise other children. According to Ms. Rossman, Ms. Vinson instructed her to leave the infants unattended once they were asleep, and when a baby was not asleep, to take the baby outside to the playground.3/ In the three years that Ms. Sallet worked at ECCC, she was never instructed or told that she could leave sleeping children unattended, and never heard Ms. Vinson tell any other employees to do so. According to Ms. Sallet, when ECCC employees took breaks, even to go to the bathroom, they were relieved by another employee. According to Ms. Sallet, ECCC employed a "floater," who would float from room to room to offer minimal relief for bathroom breaks and the like. Ms. Williams was not be assigned to a particular room, but would float from room to room as necessary. Ms. Williams never observed infants unsupervised, and described Ms. Vinson as being very strict about that. Ms. Hall, while volunteering at ECCC, never saw children left unattended and thought that ECCC was overstaffed. Ms. Vinson denies ever instructing any staff member to leave children unattended. Rather, she instructs them to remain with the children they supervise at all times. Ms. Vinson denies instructing staff to leave children in one classroom so that they can perform other facility business. On August 10, 2010, Ms. Cruz-Gil went to ECCC and observed eight infants in the infant room with only one staff member present. Ms. Vinson, however, maintains that on that day, Department inspectors came to the facility with law enforcement. She was with the one-year-old class, a staff member, Marisol, was with the infants, and Ms. Frewoini was with the two-year- olds. Ms. Vinson opened to the door and was informed that she had to deal with certain allegations immediately or she would be shut down. She instructed Marisol to watch the one-year-old class while she dealt with the inspectors and law enforcement. She did not have a floater working that day. Consequently, Marisol ended up watching a combination of infants and one-year- olds. At that point, Ms. Cruz-Gil observed eight children in the infants' room with one staff person, and cited this as a ratio violation. On September 1, 2010, Ms. Cruz-Gil went to ECCC to hand deliver a disqualifying letter to Ms. Vinson regarding an employee of ECCC. When she arrived, she observed 18 children on the playground, including infants, with only one staff member and one volunteer being present. According to Ms. Cruz-Gil, volunteers cannot be counted when calculating the staff-to-child ratio. Ms. Vinson denies that there were 18 children on the playground. Ms. Vinson was away from the center and received a call from staff that Ms. Cruz-Gil was there stating that the center was out of ratio. Ms. Vinson then returned to the center According to Ms. Vinson, the sign-in sheet for that day reflects that only 15 children were present and three ECCC staff present. As with most encounters between Ms. Vinson and Ms. Cruz-Gil, each describes the other as "screaming" at the other, not cooperative, and confrontational. The professional relationship between Ms. Vinson and Ms. Cruz-Gil is poisoned. In light of this history between them, it would be ill-advised for Ms. Cruz-Gil to be involved in any further compliance issues between the Department and Ms. Vinson. The final allegation under this category is that Ms. Vinson routinely directed employees to mix age groups in the facility, on the playground, and on field trips. Again, these allegations are primarily based on representations made by Ms. Holmes and Ms. Rossman. Ms. Holmes testified that she took children in the van "half the time" she was there (later "clarifying" this to "it was like kind of often"), away from the center for the purpose of maintaining proper ratio; that the van is a 15 passenger and that we "never had the kids in seat belts or car seats." She further testified that Ms. Vinson directed her to mix infants and toddlers "maybe two to three times a week;" and that Ms. Vinson would yell at employees to hurry up, that a DCF inspector might come by and that they already had a case against her. Ms. Rossman testified that three or four times, she and Vanessa would take children in the large stroller to the park. The stroller held six children and the older children would walk. It is not clear from this allegation, however, how old the children were who were in the stroller. Ms. Sallet described going on nature walks using the stroller, but that proper ratio was maintained during those walks. According to Ms. Sallet, the only instance in which Ms. Vinson directed staff to mix age groups is when Early Learning Coalition came to ECCC for some kind of activity in which all of the children participated. At those times, everyone would all gather in the common area, teachers as well and students. Ms. Williams described the nature walks as walk around the property on a little path, with six kids in the "bye-bye buggy." Ms. Williams never heard Ms. Vinson instruct employees to mix different age groups of children together so that ratios were maintained. Ms. Stewart, who worked there for six years, described Ms. Vinson as "adamant" about maintaining ratio. Ms. Vinson denies ever instructing any ECCC staff member to take mixed age groups of children away from ECCC to manipulate staff to child ratio. Personnel Violations The Second Amended Administrative Complaint charged Respondent with the following: During June and/or July 2010 the Respondent paid an 11-year-old-girl child, T.E., (who also attended the facility with her siblings) $10 per week for two or three weeks to watch the infants in the infant room by herself. . . . Respondent's owner and director, Joyce Vinson, has repeatedly allowed her fiancé, Kevin Wright, who has a disqualifying offense and has not been subjected to background screening, to transport children to and from the facility with no other child care personnel present. . . . The facility's director, Joyce Vinson, hired V.L., even though Vinson knew that V.L. was not eligible to work in a child care facility because of her criminal record for child abuse that occurred at another child care facility. . . . Respondent's owner and director, Joyce Vinson, knowingly falsified training records for employees. The failure to complete the training requirements is a continuing Class III violation with regard to each affected employee. T.E. is an 11-year-old female child who attended ECCC in the summer of 2010. T.E. testified that while she attended ECCC, she helped watch the babies some times. T.E.'s testimony regarding whether she was ever alone in the room with the babies without an adult was inconsistent. On one occasion, Ms. Vinson gave her $10, which T.E. assumed was payment for watching the babies. Cassie Tillman is T.E.'s mother and the daughter of Ms. Rossman. All five of her children attended ECCC for a period of months in 2010. She recalled that her daughter received $10 on two occasions, and that her daughter told her it was for watching the babies. Ms. Stewart, who worked at ECCC for six years, has seen Ms. Vinson give children money or other gifts for their birthdays. Ms. Vinson gave Ms. Stewart's grandchildren $5 for their birthdays. Ms. Vinson confirmed that she gave $10 to T.E. for her birthday in the summer of 2010, but denies that it was for watching babies. Kevin Wright is the fiancé of Ms. Vinson and has known her since 2006. He holds a degree from Bethune Cookman University and recently became a contract vendor for the School Board of Alachua County to be a substitute teacher. In 1995, Mr. Wright pled nolo contendere to the charge of possession of cocaine, a third-degree felony. Adjudication of guilt was withheld and Mr. Wright was placed on probation for six months, and was required to participate in the Life Skills Program at the Alachua County Adult Detention Center and to seek gainful employment. On the date of the Duval incident, a parent had driven a child to Duval Elementary to see the play. Mr. Wright rode with the parent. This parent was not properly dressed and requested Mr. Wright to escort the child from her car into the school. He did so. He was not on the van. This is supported by Ms. Sallet's testimony regarding who was on the van the day of the incident. Similarly, Mr. Wright has escorted ECCC children from the van into the public library. Mr. Wright denies that Ms. Vinson has ever asked him to transport children who attend ECCC and that he has never done so. Ms. Vinson denies that she ever asked him to do so.4/ Ms. Vinson hired Vanessa Latson when the daycare center where Ms. Latson worked was closing. Ms. Vinson inquired as to whether or not they would rehire Ms. Latson and was told that they would. Ms. Latson had been subject to background screening prior to her employment at the other daycare center. At the time Ms. Latson came to work for Ms. Vinson, the background screening was required every five years, and Ms. Latson had been screened within that time. However, the requirements have changed and now every new hire must be rescreened. Ms. Vinson became aware that Ms. Latson had a criminal record in her past. Ms. Vinson then inquired about this and, when she learned that this was the case, she fired Ms. Latson. On September 1, 2010, Ms. Cruz-Gil went to ECCC with the letter regarding Ms. Latson's disqualifying offense. However, by that time, Ms. Vinson had learned of it and already fired Ms. Latson. In 2007, Ms. Latson entered a plea of nolo contendere to the offense of cruelty toward a child; abuse without great harm, a third-degree felony. Adjudication of guilt was withheld, and she was placed on two-year's probation. There is no credible evidence that establishes that Ms. Vinson knew about Ms. Latson's criminal record prior to hiring her. The final allegation regarding personnel violations is that Ms. Vinson knowingly falsified training records for employees. This allegation was based primarily on Ms. Holmes's representations. Ms. Holmes alleged that she observed Ms. Vinson take her (Ms. Holmes') training certificates and cut- and-paste the names of other employees; that she observed Ms. Vinson make copies of CPR cards for other individuals who did not attend the CPR class and asked Ms. Holmes to laminate them; and that Ms. Vinson changed an employee's employment start date on-line so there would be more time to complete training. Additionally, Ms. Rossman, in confusing and unclear testimony, asserted that Ms. Vinson asked Ms. Holmes to take a test for her (Ms. Rossman). It is unclear why Ms. Vinson would ask Ms. Holmes to take the test for Ms. Rossman when Ms. Rossman was able to take the test. Ms. Vinson denies falsifying employees' records. Ms. Vinson explained that the person takes the class on-line, then goes to a test center to take the test. Ms. Vinson can then check on-line to see if a person has successfully passed the course, and she can then print the certificate. Regarding the allegation that Ms. Vinson told Ms. Holmes to take a test for Ms. Rossman, Ms. Vinson asserts that it was Ms. Rossman who stated that she (Ms. Rossman) was going to ask Ms. Holmes to take the test for her. According to Ms. Vinson, both Ms. Holmes and Ms. Rossman were supposed to take a test on a Saturday in early June, but did not show up to take the test. When Ms. Rossman came back to work the following Monday, Ms. Vinson informed her she could not work because she had not taken the test. Ms. Vinson asserts that at that point, Ms. Rossman threatened to close her down. Ms. Holmes did not return to work. Several witnesses who had been employees of ECCC prior to its closure denied ever seeing Ms. Vinson do this. As with many of the other allegations made by Ms. Holmes and Ms. Rossman, in order to find these the allegations are true, Ms. Vinson would have done all of these things in front of only these two employees, but never in front of any other employee, regardless of how long they worked for Ms. Vinson.5/ Pamela Buckham is the Regional Safety Program Manager for the Department, and is in charge of child care licensing for the northeast region. Ms. Buckham signed the Second Amended Administrative Complaint. It was primarily Ms. Buckham's decision to seek revocation of ECCC's child care license. Ms. Buckham decided to seek revocation rather than impose lesser sanctions because she believed that the children who attend ECCC are in danger. Ms. Buckham based this conclusion on the numerous class I violations alleged that involved child safety, the seriousness of some of the violations, and that the other violations were repeat violations. Further, Ms. Buckham described dealings with ECCC as being met with "a lack of cooperation."
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order placing the license on probation for the length of time the facility has been closed due to the Emergency Suspension Order; imposing fines in the amount of $740; requiring Respondent to attend further training regarding the requirements of section 402.305(4) and Florida Administrative Code Rule 65C-20.001(4); and requiring successful completion of such training prior to reopening the child care facility. DONE AND ENTERED this 25th day of July, 2011, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 25th day of July, 2011.
The Issue Whether the Department of Children and Families (DCF or Petitioner) should impose sanctions against Respondent, Chutes N’ Ladders 2, LLC (Respondent), for alleged violations in the operation of a child care center.
Findings Of Fact Respondent is licensed by DCF to operate a child care facility at 1961 Royalview Drive, Port Charlotte, Florida. Respondent’s license certificate is C20CH0032. The facility’s current license is effective through July 31, 2015. Petitioner is charged by law to regulate and inspect all child care facilities in the state of Florida to assure compliance with all licensing standards. Licensing standards are defined by statute and rule, and are denoted on the “Inspection Checklist” used by DCF. Prior to November 13, 2013, Jeanette Witmer, a DCF licensing counselor, was assigned to inspect child care facilities licensed in Port Charlotte, Florida. Among those facilities was Respondent’s Chutes N’ Ladders 2, LLC. On November 13, 2013, Ms. Witmer went to Chutes N’ Ladders 2, LLC, to perform a routine inspection. Using the Inspection Checklist, Ms. Witmer went through the facility noting pertinent facts. Ms. Witmer considered the rooms designated as “infant rooms” to be two separate rooms. The capacity for each separate room was clearly and accurately posted. The combined total occupancy for the two rooms was not exceeded. The issue was not the square footage of the rooms or the layout of the rooms. An issue arose because, based upon the documentation then in use, the space was designated as two rooms. As such, each room required the appropriate staffing and supervision for the space. As a practical consideration, Respondent did not treat the space as two rooms. Instead, Respondent considered a fixed table permanently built into a low wall as insufficient to constitute a divider between the two spaces. Respondent, therefore, treated the space as one room. Ms. Witmer noted that supervision could not be provided to all areas of the space by persons standing in one area of the rooms. In fact, such observation formed the basis for a warning given to Respondent on that date. Since there were four children on one side of the space (room 1) and four children on the other side of the space (room 2), Ms. Witmer concluded the caregivers should have been separated, one to each side. Instead, two caregivers were located on one side of the space and could not observe the activity of an infant on the floor in the adjacent room. As a result, Respondent issued a warning for a standards violation: not having staff appropriately stationed to meet the ratio requirement (1:4). Additionally, when the staff member supervising the two- to three-year-old group could not verbally confirm how many children were under her supervision, another warning was issued. Part of the supervision standard requires staff to be cognizant of the children in their care. After the routine inspection was completed, a copy of the Inspection Checklist documenting the issues noted above was provided to Respondent’s facility director. In follow-up to the inspection, Michael and Phyllis Larkin met with Ms. Witmer and Sherrie Quevedo, the DCF licensing supervisor, in December 2013. Among the concerns was the designation of the two rooms as two rooms instead of one large space, and the claim that supervision was an issue. In reality, the facility had the appropriate number of staff to supervise the children in the two rooms. The issue presented when one of the staff went to the separate side of the space and left the children on the other side of the “desk” unattended. This warning could have just as easily been about failure to supervise the children as the ratio standard cited. Once brought to the facility’s attention, the problem could have been easily resolved. Similarly, the second warning was minor in that the facility would be able to instruct staff to be aware of their charges at all times. Neither of these issues should have been insurmountable for Respondent. The weight of the credible evidence supports Petitioner’s assertion that the December 2013 meeting among the parties was ended on an amicable note with all in agreement. Ms. Witmer next inspected Respondent’s facility in connection with a complaint filed. Although eventually determined to be unsubstantiated, Ms. Witmer was required by law to review activities at the facility that allegedly occurred on April 11, 2014. To that end, Ms. Witmer went to Respondent on April 16, 2014, to specifically consider licensing standards related to ratio and supervision: the two standards essential to support child safety. The allegation claimed a child had been bruised under his chin by some means. Ms. Witmer and the facility director, Angela Straub, viewed the video tape kept at Respondent’s center for the date in question (April 11, 2014). After reviewing the tape, Ms. Witmer determined that the child who was claimed to have been bruised was not injured. Nevertheless, in reviewing Respondent’s video, Ms. Witmer observed other issues. More specifically, Ms. Witmer was able to determine that B.J. (a staff person employed at the facility) committed ratio and supervision violations on April 11, 2014. When confronted by Ms. Witmer and the video depicting the issues noted, B.J. admitted the ratio and supervision violations. Subsequently, Respondent terminated B.J.’s employment with the facility. Additionally, Respondent removed the “table” separating the two rooms and designated the one space for occupancy and staffing. On April 16, 2014, Ms. Witmer advised Ms. Straub and Mrs. Larkin that based upon the video review of the date of the alleged incident, the two standards violations would be imposed against the facility. The video tape for the April 11, 2014, activities at Respondent’s facility remained in Respondent’s possession. At all times material to the allegations of this case, Respondent exercised exclusive control over the video. Respondent did not maintain a copy of the video of the facility for April 11, 2014. At hearing, Respondent disputed the accuracy of Ms. Witmer’s account of the citations for ratio and supervision for April 11, 2014. The persuasive weight of the credible evidence supports Ms. Witmer’s account, the Inspection Checklist she maintained contemporaneously with the events, and her conclusions regarding the deficiencies noted. Subsequent to the child abuse investigation being closed, and in accordance with DCF policy, the Complaint Inspection Checklist, Supplemental Inspection Sheet Complaint Form, and Notice of Administrative Action were sent to the facility. Respondent timely filed a request for an administrative hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent violated the ratio and supervision standards as alleged, and imposing an administrative fine in the amount of $100.00. DONE AND ENTERED this 24th day of February, 2015, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 24th day of February, 2015. COPIES FURNISHED: Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Phyllis Larkin Chutes N' Ladders 2, LLC 1961 Royalview Drive Port Charlotte, Florida 33948 Eugenie G. Rehak, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue is whether Respondent violated Florida Statutes and Rules concerning the delivery of childcare services and should receive fines and other penalties in accordance with Florida law. For the reasons set forth more fully below, Petitioner violated certain provisions of the Florida Statutes and Florida Administrative Code and should be subjected to fines and probation.
Findings Of Fact Respondent 3 in 1 Learning Center (the Center) is a child care facility licensed by the Department. A licensed child care facility has the responsibility for providing care to those children who have been placed in its care. Families in Duval County rely upon the Department to monitor child care facilities and ensure compliance with the Florida Statutes and Department's administrative rules. On March 15, 2010, Family Services Counselor Meike Rice received a complaint regarding the Center. The complaint alleged that the Center was transporting children in its 15-passenger van from Head Start to the Center without meeting the proper requirements. Transporting children in a van without the appropriate seat belts or child safety restraints is a dangerous activity that could result in death or serious injury. Ms. Rice visited the Center on March 15, 2010, and saw the van with the engine running and two staff members, Latrice Evans and Lisa Perkins, sitting in the front seat. Ms. Rice asked the staff to turn off the van. She then looked inside the van and observed young children without proper seat belt restraints or car seats. There were eight children in the van. The first row had one child; the second row had two children sharing a seat belt; the third row had two children; and the last row had three children, one of whom was crawling around, one of whom was in a car seat, and one of whom was on the bench seat. Ms. Rice spoke to the van driver, Latrice Evans, and the passenger, Lisa Perkins, whom she knew better as Arial Perkins, and told them of her concerns regarding the complaint and their transportation of the children. Ms. Rice documented on her complaint review that the driver lacked a driver's license, and that her personnel record did not have a copy of the certification to grant them approval to transport children. Moreover, the van had not been certified by the Department as appropriate for transporting children in a day care facility setting. Ms. Rice had been previously informed by Ms. Perkins that she was employed by the facility since December of 2009, but the staff was unable to provide any documentation of her employment history on the date of Ms. Rice's visit. Ms. Rice found that Ms. Perkins was missing Form 5131, the background screening and personnel file requirement form; verification of her employment for the past two years; documentation of an attestation of good moral character; and a fingerprint card for purposes of conducting the state and federal criminal checks. Ms. Perkins was employed by the Center from November 16, 2009, until January 2010, and was only visiting the Center on the date of Ms. Rice's visit. After observing the van, Ms. Rice entered the Center to conduct a count of the children and to review the Center's records. In the Center, Ms. Rice counted 19 children, putting the Center at its licensed capacity. However, when the eight children in the van were counted, the Center far exceeded its licensed capacity. Ms. Rice informed the Center's director, Ms. Wallace, that she needed to call parents to pick up their children in order for the Center to get back into compliance with its licensed capacity. Ms. Rice spent about two hours at the Center on her March 15, 2010, visit. Ms. Rice issued an Administrative Warning letter to the facility regarding its overall licensed capacity, room capacity, transportation logs, and lack of background screening documents. Ms. Rice returned to her office to address the matters she discovered while investigating the complaint. Ms. Rice and her supervisors determined the violation based upon the lack of proper child restraints for the young children in the van was a Class I violation from which a fine could ensue in the amount of a minimum of $100 to a maximum of $500. The Department decided to impose the maximum fine of $500 based on the number of children who were lacking the required safety restraints and the lack of seat belts. Violation 2 was based upon the employment history check of Ms. Perkins. Since this was the third Class II violation against the Center, having had previous violations on June 23, 2009, and November 10, 2009, the fine would be $60 per each day of violation. Ms. Rice found no documentation at the time of her inspection concerning Ms. Perkins' employment history, and therefore, made the beginning point for calculating the fine December 31, 2009, and culminating on her March 15, 2010, visit, for a total of 49 days. At $60 per day, the fine amounted to $2,940. Violation 3 was based on the lack of a fingerprint card for Ms. Perkins. This was the first occurrence of violating the standard, the Center having been previously cited on November 10, 2009, with a warning, so a flat $50 fine was imposed. Violation 4 concerned having the attestation of good moral character on hand for an employee. The Center was previously cited three times for this offense. This Class III violation was documented on June 23, 2009, November 10, 2009, and December 1, 2009. Using the same time period as she used for the other major fine, Ms. Rice issued a fine of $30 per day for 49 days, totaling $1,470. Ms. Rice received by fax a copy of the local background check, a copy of the fingerprint card, a copy of final disposition of a criminal case, and a copy of an FDLE report on March 16, 2010, concerning Ms. Perkins. This reinforced her belief that Ms. Perkins was employed by the Center. Ms. Rice worked closely with the Center's director, Ms. Wallace, on each visit to ensure the staff files were reviewed and contained the required information. Ms. Wallace, the director of the Center since November 29, 2009, provided at the hearing exhibits regarding Ms. Perkins, many of which were not previously provided by fax to Ms. Rice. These exhibits included: Ms. Perkins reference check form; her background screening and transfer request; her employment history; her Background Screening and Personnel File Requirements form; her CPR and first aid cards; her Application for Employment in a Child Care Facility; her Attestation of Good Moral Character; her Child Abuse and Neglect Reporting Requirements Acknowledgement; her Application for Employment; her FDLE records check; her Sheriff's Office record check; her fingerprint card; and her letter of discharge dated January 6, 2010. These documents demonstrate that Ms. Perkins was an employee at the Center until January 6, 2010, but not on the date of Ms. Rice's inspection, March 15, 2010. Charles Smith, the Owner of the Center, did not dispute the violations concerning the eight children in the van.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department issue a final order imposing a fine of $500 against Respondents and placing 3 in 1 Childcare and Learning Center on probationary status for six months. DONE AND ENTERED this 15th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 15th day of November, 2010. COPIES FURNISHED: Charles Smith 3 in 1 Childcare and Learning Center 4025 Emerson Street Jacksonville, Florida 32207 Roger L. D. Williams, Esquire Department of Children and Family Services 5920 Arlington Expressway Jacksonville, Florida 32231 George H. Sheldon, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gerald B. Curington, General Counsel Department of Children and Family Services Building 2, 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
