The Issue The issue presented in DOAH Case No. 13-2051 is whether the allegations of the Administrative Complaint filed by the Department of Children and Families (Petitioner) against Wanda Williams, owner and operator of Mini Miracles Children's World Daycare Center (Respondent), are correct, and, if so, what penalty should be imposed. The issue presented in DOAH Case No. 13-2798 is whether the Petitioner should approve the Respondent's application to renew the license to operate a child care facility.
Findings Of Fact At all times material to these cases, Wanda Williams operated Mini Miracles Children's World Daycare Center located at 1712 West Chase Street, in Lakeland, Florida, under Florida license no. C10PO0769. At the time of the hearing, the status of the license was "provisional." DOAH CASE NO. 13-2051 Improper Transportation of Children The Administrative Complaint filed in DOAH Case No. 13-2051 alleges that the Respondent has transported children attending the child care facility in an unsafe manner and in violation of a written commitment from the Respondent to refrain from providing transportation under the license. Section 402.305(10), Florida Statutes (2012), and Florida Administrative Code Rule 65C-22.001(6)(d) limit the number of individuals being transported in a vehicle on behalf of a child care facility to the number of seat belts present in the transportation vehicle. The Respondent was previously cited for such transportation issues in an Administrative Complaint dated October 21, 2011, related to the Respondent's operation of another licensed child care facility. The Respondent did not contest the allegations and paid an administrative fine. The Respondent also executed a written commitment dated June 27, 2012, wherein she committed to refrain from providing transportation to children attending the facility. Based on the previous litigation, the Respondent was aware that transporting children in a number exceeding the appropriate capacity of a vehicle based on the number of seat belts or child safety restraints in the vehicle was not acceptable. Nonetheless, on more than one occasion while operating the child care facility under the license at issue in this proceeding, the Respondent transported children in an unsafe manner, or directed an employee to transport children in an unsafe manner, by placing more than one child into a seat belt and exceeding the seating capacity of vehicles. An employee of the Respondent who worked at the facility testified at the hearing that Ms. Williams had directed her to transport more children than were seat-belted positions in a vehicle by placing more than one child into a single seat belt. Although the employee knew the practice was unsafe, she complied with the Respondent's direction. Her testimony has been fully credited. During the Petitioner's investigation of the transportation issue, the Respondent initially denied the allegation, but subsequently acknowledged that children had been transported in the manner described. Failure to Employ a Credentialed Director Section 402.305(3) and rule 65C-22.003(8) require that a licensed child care facility employ an appropriately credentialed director. During an inspection conducted by the Petitioner on August 29, 2012, the Respondent was operating without having a credentialed director. Although the Respondent suggested a credentialed director had been employed until the day prior to the inspection, the evidence failed to support the assertion. Although the Respondent asserted that attempts were made to employ a credentialed director, the evidence established that the Respondent failed to employ a credentialed director and routinely operated without a credentialed director. Failure to Maintain Screening Documentation 11. Section 402.305(2)(a) and rule 65C-22.006(4)(d) require that the staff of a child care facility be subjected to "Level 2" background screening prior to employment and that the facility retain documentation that such screening has occurred. 12. During an inspection on October 9, 2012, the Respondent was unable to document that one of the staff members had passed the appropriate background screening process. During an inspection on October 22, 2012, the Respondent was still unable to document that the staff member had passed the appropriate background screening process. DOAH CASE NO. 13-2798 Failure to Maintain Documentation of Staff Training 13. Section 402.305(2)(d) and rule 65C-22.003(2)(a)1. require that all child care personnel must complete a specified introductory training course within 90 days of commencing employment at a child care facility and that the Respondent retain documentation that such training has occurred. During an inspection on October 22, 2012, the Respondent was unable to document that two of the staff members had completed the required training. During inspections on April 23 and June 12, 2013, the Respondent was still unable to document that staff members had completed the training. Failure to Maintain Screening Documentation As stated previously, the staff of a child care facility is required to undergo "Level 2" background screening prior to employment, and the facility is required to retain documentation that such screening has occurred. During inspections on April 23, May 21, and June 12, 2013, the Respondent was unable to document that all staff members involved in providing child care had passed the appropriate background screening process, a deficiency that had existed since inspections conducted in October 2012. Failure to Comply With Staffing Ratios Section 402.305(4) and rule 65C-22.001(4) establish minimal child care facility staffing requirements based on the number and age of children who are attending a child care facility. During inspections on May 21 and June 12, 2013, the Respondent did not have sufficient staff present to meet the requirements based on the number and age of children present at the facility during the inspection. This deficiency had been identified during an inspection on August 29, 2012. Child Sleeping in "Bouncer Seat" Rule 65C-22.002(5) establishes specific requirements related to the equipment that must be provided by a child care facility to permit children to nap or sleep. The rule requires that children up to one year of age be placed in individual cribs, portacribs, or sided-playpens. During an inspection conducted on May 21, 2013, an infant was observed sleeping in a "bouncer" seat, contrary to the specific provisions of the rule. This deficiency had been identified during an inspection on October 9, 2012. Failure to Post Menus Rule 65C-22.005 establishes specific requirements related to the provision of food by a child care facility. Such requirements state that at the beginning of each week, a child care facility must post menus of meals and snacks available to the children during the week. During inspections on June 12 and June 14, 2013, the required menus were not posted by the Respondent. This deficiency was identified during two inspections conducted in October 2012. Providing Fraudulent Information to DCF The Administrative Complaint alleged that the Respondent twice provided fraudulent information to the Petitioner related to the identification of the credentialed facility director. The allegation was not supported by competent evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order revoking the license at issue in this proceeding and denying the Petitioner's application to renew the referenced license. DONE AND ENTERED this 4th day of February, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2014. COPIES FURNISHED: Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830-7646 Arthur C. Fulmer, Esquire Fulmer and Fulmer, P.A. 1960 East Edgewood Drive Lakeland, Florida 33803-3471
The Issue Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.
Findings Of Fact Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida. Respondent is a day-care center in Miami, Florida, and currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran’s notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. Petitioner offered insufficient evidence to refute that testimony. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.
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 dismissing the Administrative Complaint. DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 9th day of January, 2015. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street, Suite 210 Miami, Florida 33156 (eServed) Karen A. Milia, Esquire Department of Children and Families 401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have 3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection. appropriate background information for Isabella Escalona, one of its employees. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019. Ms. Escalona's employment file did not contain a more recent background check. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available. Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status. Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children: We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.] 4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime. 5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete. Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen." All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime). The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection. All three of these staff members were ultimately deemed eligible. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine. DONE AND ENTERED this 23rd day of October, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 23rd day of October, 2020. COPIES FURNISHED: George Gardner, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ann Marie Walsh All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue is whether Respondent should renew Petitioner's license to operate a child care facility based on an alleged Class I violation of Florida Administrative Code Rule 65C- 22.001(5)(a) and an alleged history of noncompliance with the Florida Administrative Code rules regulating child care facilities.
Findings Of Fact At all times material here, Petitioners owned and operated Child Care 2000, #1 (the facility), located on State Road 44, Sorrento, Florida. Petitioner George Barrett was the licensed child care director of the facility, which had been a child care center for 14 years. The facility had an employee's manual that addresses its policies. The manual contained policies regarding regular staff meetings, parent/teacher conferences, and mandatory initial/in-service training requirements. The manual also included a section on safety, which stated as follows: Do not leave your classroom unsupervised at anytime, indoors or out. All electrical outlets must be covered at all times. Any broken or damaged equipment must be removed or brought to the Director's attention. Remember to count your children every hour. All of these things must be done daily. DO NOT leave children unattended. There will be tolerance for this action. The facility had a time clock, which the employees used to record their time at work. The information from the time clock transferred electronically to the facility's computer, which captured the information for use in a software program that generated payroll. If a teacher's time card was incorrect for any reason, the bookkeeper could manually override the system to correct any error. The facility also used the time clock to log the time that children attended the facility. The attendance records transferred electronically to the facility's computer, which captured the data for use in a software program that generated billing statements. The children's parents used a password to activate the time clock when they dropped off or picked up their children. There is no evidence that anyone at the facility knew how to manually override the children's electronic attendance log. Respondent alleges that its inspector, Glenda McDonald, performed an inspection of the facility on October 27, 2005. The inspection checklist contains allegations that the facility was noncompliant in the following areas: (a) Outdoor Play Area, Florida Administrative Code Rule 65C-22.002(4)(c)(g); (b) Fencing, Florida Administrative Code Rule 65C-22.002(4)(d)(e); (c) Outdoor Equipment/Suitable, Safe, Maintained, Florida Administrative Code Rule 65C-22.002(9)(b); (d) 10-hour In- service, Florida Administrative Code Rule 65C-22.003(6)(a)-(c); (e) Bottles Sanitary and Labeled, Florida Administrative Code Rule 65C-22.005(3)(b)(c); (f) Children's Health/Immunization Records, Florida Administrative Code Rule 65C-22.006(2)(a)-(c); (g) Personnel Records, Florida Administrative Code Rule 65C- 22.006(5)(a)-(c), (e), (f), (6)(e); and (h) Form 5131/Screening Documents, Florida Administrative Code Rule 65C-22.006(5)(d). Respondent did not present Ms. McDonald as a witness at the hearing. Without Ms. McDonald's testimony or an admission by Petitioners, there is no competent evidence by Respondent to show the facility's noncompliance on October 27, 2005. During the hearing, Petitioners did admit that the facility failed to comply with the rules on October 27, 2005, in the following respects: (a) the need to remove or replace a broken swing as required by Florida Administrative Code Rule 65C-22.002(9)(b); and (b) the need to update children's shot records and physicals as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). Petitioners presented testimony that the broken swing was repaired immediately after the October 27, 2005, inspection. Additionally, Petitioners admitted that they found it impossible to keep the children's shot records and physicals updated, but that they corrected the problem in a timely manner after the October 27, 2005, inspection. On January 30, 2006, one of Respondent's inspectors, Debbi Mitchell, performed an inspection of the facility. Ms. Mitchell observed that the facility was noncompliant in the following ways: (a) failure to update children's shot records as required by Administrative Code Rule 65C-22.006(2)(a)-(c); and (b) failure to update personnel screening documents as required by Florida Administrative Code Rule 65C-22.006(5)(d) and Section 435.04, Florida Statutes. There is no evidence to dispute Ms. Mitchell's testimony regarding the January 30, 2006, inspection. The failure to keep the children's shot records updated was a repeated offense. On or about March 31, 2006, Petitioner filed an application with Respondent to renew their license. Petitioners' daughter-in-law was the facility's office manager. When Petitioners were unable to be present at the facility, the daughter-in-law was the person in charge of the child care center. If the Petitioners were absent and the daughter-in-law had to leave the premises, Linda Race, a senior pre-kindergarten teacher was in charge of the facility. Ms. Race would take over as the person in charge when Petitioner's daughter-in-law handed her the facility's telephone. A.B. was the son of the daughter-in-law/office manager and the grandson of Petitioners. In the spring of 2006, A.B. was two-years-old. He attended one of the pre-kindergarten classes at the facility. It was not unusual for A.B. to see his mother during the school day. Sometimes A.B. would become upset and cry if he was not allowed to leave his class and go to his mother in the office. On April 25, 2006, Petitioners were not at the facility. Petitioner Alicia Barrett was taking care of Petitioner George Barrett, who was recovering from a serious illness. On April 25, 2006, Petitioner's daughter-in-law clocked into work at the facility at 8:10 a.m. A.B. arrived with his mother then joined his class. Later that morning, A.B. began crying for his mother. Ms. Race attempted to refocus A.B.'s attention before letting him go to his mother. From that time on, Ms. Race believed that A.B. was no longer participating in her class because he was with his mother. Ms. Race understood that A.B.'s mother was planning to leave the facility in the early part of the morning. On April 25, 2006, Petitioner's daughter-in-law clocked out of the facility at 9:59 a.m. She had been at the facility for one hour and 49 minutes before she clocked out. A.B.'s electronic attendance log for that day indicates that he was in attendance for one hour and 49 minutes. A.B.'s mother did not testify at the hearing. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race and her assistant, another teacher identified as Brittany Russell, were with the children on the facility's porch. As the children prepared to move from the porch to their classroom, Ms. Race and Ms. Russell, began taking a head count. About that time, A.B.'s mother approached Ms. Race and handed the facility's telephone to her. Accepting the telephone with a call on the line, Ms. Race realized that A.B. was not with his mother and that he was at the Circle K, a convenience store and gas station located next to the facility. Apparently, employees of the Circle K had called the facility to see if a child was missing. Ms. Race immediately ran from the facility to the Circle K to retrieve A.B. The totality of the circumstances indicates that A.B. was with his mother when he left the facility. The facility's teachers had no reason to believe otherwise. No one at the facility prepared an incident report relative to the events that occurred on April 25, 2006. However, under the circumstances of this case, it is clear that A.B.'s mother was aware of the emergency that was created when A.B. left his mother and went to the Circle K. On May 12, 2006, Ms. Mitchell investigated a complaint against the facility involving the events of April 25, 2006. The investigation of the complaint resulted in Respondent's issuance of an Intent to Impose Administrative Action for the following alleged violations: (a) inadequate supervision as required by Florida Administrative Code Rule 65C-22.001(5)(a), (b), (d)1.-3.; and (b) failure to document the incident involving A.B. as required by Florida Administrative Code Rule 65C-22.004(2)(d)2. There is no clear and convincing evidence to support these allegations. The facility did not provide inadequate supervision for A.B. because he was with his mother and not under the supervision of the facility when he went to the Circle K. Accordingly, there was no need for the facility to document the incident. On May 12, 2006, Ms. Mitchell also performed an inspection of the facility. During the inspection, Ms. Mitchell observed the following alleged noncompliance: (a) Planned Activities Posted and Followed as required by Florida Administrative Code Rule 65C-22.001(7)(a); (b) Outdoor Equipment/Suitable, Safe, Maintained as required by Florida Administrative Code Rule 65C-22.002(9)(b); (c) First Aid Staff/Supplies as required by Florida Administrative Code Rule 65C-22.004(2)(a)-(c); (d) Accident/Incident Documented as required by Florida Administrative Code Rule 65C-22.004(2)(d)2.- 4.; and (e) Children's Health/Immunization Records as required by Florida Administrative Code Rule 65C-22.006(2)(a)-(c). On May 12, 2006, the plan of classroom activities/schedule for each age group was posted in entrance to the facility near the office. That area was an appropriate place for all parents entering or leaving the facility to access the plan. On May 12, 2006, the facility's playhouse, which was located on its playground, had broken boards. After Ms. Mitchell's inspection, Petitioner immediately repaired the broken boards. The failure to keep the playground equipment properly maintained was a repeated violation. On May 12, 2006, Ms. Mitchell inspected the facility's fist aid kit, finding it extremely incomplete. Petitioners immediately corrected this noncompliance. On May 12, 2006, Ms. Mitchell determined that Petitioner did not prepared an incident report relative to A.B. leaving the facility on April 25, 2006. However, such documentation was not required because A.B. was with his mother, who had clocked him out of the facility. On May 12, 2006, Ms. Mitchell found that the facility had outdated shot records and/or physicals for four students. This was the third consecutive instance of this type of noncompliance. After the inspection, Petitioner corrected the problem in a timely manner. At the time of the hearing, the facility was closed.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order granting Petitioners' application to renew their license to operate the facility, subject to terms and conditions that Respondent deems appropriate. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 13th day of September, 2006. COPIES FURNISHED: Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785 Stella V. Balandran Qualified Representative 95 South Trowell Avenue Umatilla, Florida 32784 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Luci D. Hadi, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Did Respondent, Department of Children and Families (Department), correctly deny the application of Petitioner, Laura's Learning and Enrichment Center (Laura's Learning), for licensure renewal for failure to meet the minimum licensing standards for child care facilities?
Findings Of Fact The Legislature has charged the Department with regulating and licensing child care facilities. Laura Smith owns and operates Laura's Learning in Lake Wales, Florida. Since 2009, the Department has licensed Laura's Learning as a child care facility. The charges involved in this proceeding are the first time that the Department has acted against Laura's Learning's license. Ms. Smith submitted an amended application to renew her license on November 21, 2019. The Department proposes to deny renewal of the license because Ms. Smith failed, the Department asserts, to protect her adopted son, B.S., from bizarre punishment and resulting physical and emotional harm. It also alleges that Ms. Smith failed to provide a required update to her renewal application. In its case number 2019-197752-01, the Department made a verified finding of abuse by Ms. Smith of B.S., her adopted son, by failing to protect him from bizarre punishment and physical injury. Because of this, the Department revoked Ms. Smith's license to operate a family foster home. However, Ms. Smith did not oppose revocation and wished to surrender her license. Ms. Smith did not amend her application to advise the Department that it had revoked her foster home license. Ms. Nancy Ebrahimi learned of the verified finding and license revocation during her routine review of Department registries during the license renewal process. August 7, 2019, after a shelter hearing in which Ms. Smith said that she did not want B.S. in her home any longer, the court ordered that B.S. be placed in the shelter custody of the Department. An August 8, 2019, Shelter Order at Review continued this placement. On September 18, 2019, the court granted the Department's Petition for Termination of Parental Rights of B.S. This decision included consideration of the fact that Ms. Smith signed an Affidavit and Acknowledgment of Surrender, Consent to Termination of Parental Rights, and Waiver of Notice form before the Department filed its Termination of Parental Rights Petition. Ms. Smith's relationship with B.S. began when she served as his foster parent. She adopted him when he was about seven (born March 11, 2005). B.S. lived in Ms. Smith's home in Lake Wales, Florida. He occasionally helped with chores, such as yardwork, at Laura's Learning. He was also responsible for chores at home. Ms. Smith had other children, including an adult biological daughter, Jayda Miles, who, at the times involved here, lived in Cocoa Beach, Florida, and visited Ms. Smith's home regularly, often with her husband, Antonio Miles. Mr. and Ms. Miles lived on Patrick Air Force Base because of his service in the Air Force. Another adult sibling, Chaundi Parham, lived at Ms. Smith's home and worked sometimes at Laura's Learning. Young twins who were Ms. Smith's foster children lived in the home with a third foster child. On June 17, 2019, B.S. was doing yardwork at Laura's Learning. Ms. Parham was overseeing him. B.S. could not complete mowing because the mower was flooding. Ms. Parham directed him to sit on a bench and wait for Ms. Smith to arrive. B.S. removed a bag of Cheetos from the back pack of the twins, who were also at Laura's Learning. Ms. Parham caught him eating the Cheetos in the bathroom. She scolded him and called Ms. Smith. Ms. Parham was unable to reach Ms. Smith, so she called her older sister, Ms. Miles. Ms. Parham then told B.S. to sit on a bench to await Ms. Smith. B.S. jumped the fence surrounding the child care center and ran away. B.S. was 14 years old at the time. Ms. Parham reported B.S. as a runaway. During the preceding year, B.S. had started regularly having trouble at school. He frequently got in fights. Lake Wales police officer, Edgar Claros, responded to the report of B.S. running away. On June 18, 2019, Ms. Smith reported to the police that B.S. had returned home. She also reported that he said he wanted to live on the streets and left home again. B.S. had run away two or three times before. The Department assigned Ms. McConnell-Bailey to investigate. On June 18, 2021, Ms. McConnell-Bailey visited Ms. Smith to question her about the runaway report. She also questioned Ms. Smith about reports from an unidentified source, possibly a caller to the Department's abuse line, about maltreatment of B.S. including use of a "taser1", striking him with various 1 "Taser" is a brand name for a stun gun and likely not the brand involved here. The device was a stun gun that required contact of its electrode prongs with the subject's skin, called "drive tasing." There is no evidence that any of the tasing involved darts. "Taser" and "tase" are used in this Order because that is the description the witnesses used. objects including a wooden spoon, and making him sleep in the garage and laundry room. Ms. Smith was visibly angry. She denied the allegations and said B.S. was not going to ruin her business and take everything she had worked so hard for. She said B.S. was lying and that she had no idea where he was, except that some people told her he was somewhere in the neighborhood of a Publix. Ms. Smith did not express concern for B.S.'s well-being. She did tell Ms. McConnell-Bailey that she had removed all pictures of B.S. from displays of family photographs because they upset her. Ms. Smith began crying during the interview. She said the situation upset her and was causing her to get sick. She said she felt she was too old for the troubles B.S. caused and she did not want to deal with him anymore. On June 21, 2019, Ms. Smith called Detective James Lewis and advised him she had heard that B.S. was near the area of G. Street and Lincoln Avenue. Ms. Smith told Detective Lewis that she hoped the officers did not find B.S. and that he keeps running. Ms. Smith also said B.S. had been lying about her family, specifically her daughter, Jayda, falsely claiming abuse. And she said she wanted to file for an injunction against him. Ms. Smith did not express or display any concern for B.S. Ms. Smith, however, told Detective Lewis that she was going to the area where B.S. might be, but that he would run from her. Detective Lewis passed the information about B.S.'s location on to Officer Eric Ricks, who located B.S. in the area. Officer Ricks located B.S., picked him up, and spoke with him. Officer Ricks asked B.S. why he ran away and did not want to return home. B.S. told Officer Ricks that his sister, Ms. Miles, tased him and pepper sprayed him on June 16 in the presence of Ms. Smith, Mr. Miles, and Ms. Parham. B.S. indicated that it was because he had tried to steal something to eat. B.S. was apprehensive about returning to Ms. Smith's home. B.S. appeared to be on the verge of tears. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Officer Ricks transported B.S. to the police station where Detective Lewis assumed responsibility for the investigation. Detective Lewis interviewed B.S. with Child Protective Investigator Ruth McConnell-Bailey, for forty-five minutes to an hour, the night of June 21, 2019. B.S. told Detective Lewis that Ms. Miles had repeatedly tased him on his left chest area and on his upper left arm and sprayed him with pepper spray on June 16, 2019. He said this was because he had been caught preparing to steal a honeybun. This, he said, was the reason he ran away and did not want to return. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Detective Lewis inspected B.S.'s chest and left arm. He found injuries and scabs that he thought were consistent with the injuries made by a taser. The pain from tasing that B.S. described was consistent with the pain Detective Lewis experienced when he was tased during training. Detective Lewis did not measure the distance between scabs or other injuries to determine if they corresponded with the typical separation of the prongs of a taser. B.S. also told Detective Lewis that he was wearing snowman pajamas the night of June 16. After the interview, Detective Lewis and Ms. McConnell-Bailey transported B.S. to the home of Cheryl Jennings who had agreed to provide him lodging. B.S. was happy to be taken there instead of Ms. Smith's home. B.S. said that he felt unsafe at Ms. Smith's home. Detective Lewis and Ms. McConnell-Bailey then went to Ms. Smith's home to obtain clothes for B.S. and to obtain the snowman pajamas. The pajamas had been washed, dried, and folded. Detective Lewis examined the pajamas. He identified one small burn hole on the chest area of the pajamas. He thought the hole was consistent with use of a taser with its prongs placed directly on the person being tased. Although B.S. claimed he had been repeatedly tased on his left chest and left arm, the pajamas had only one possible burn hole. A few days later, Detective Lewis interviewed Ms. Miles. She denied the claims of B.S. She also allowed Detective Lewis to search her car. He did not find a taser or pepper spray. On June 25, 2019, Thia Lomax, Children's Home Society Children's Advocacy Center Case Coordinator, Child Protection Team, interviewed B.S. Ms. Lomax is a trained and experienced forensic interviewer. Ms. Lomax noticed marks on B.S.'s neck. He told her they were from a recent fight. Ms. Lomax interviewed B.S. for about an hour. The record contains a video recording of the interview. The interview is neutral and undirected. Ms. Lomax does not suggest or imply responses by her questions or body language. However, Ms. Lomax also does not test or challenge B.S.'s statements. B.S. basically made the same report about events the night of June 16 as he made earlier to Detective Lewis. He also made a new claim that Ms. Miles tased him on the patio earlier in the year, around Memorial Day, in the presence of Ms. Smith and Ms. Parham. His description did not identify a number of tasings or how long the experience lasted. B.S. also made claims about being struck by a broom and a spoon and made to "work like a slave." On August 6, 2020, the parties deposed B.S. A transcript of the deposition is also part of the record. B.S. did not testify at the hearing. B.S.'s deposition testimony differed from the interviews. B.S. demonstrated confusion and changed the details of his reports. The evidence about the initial events of the night of Sunday, June 16, 2019, is consistent. Mr. and Ms. Miles were spending that night at Ms. Smith's home. On June 16 Ms. Smith took B.S. to Walmart sometime after midnight to buy a Sprite. Antonio Miles was at the Walmart, having arrived separately. He observed B.S. preparing to steal a honey bun. When B.S. saw Mr. Miles watching him, he abandoned his plan to steal a honey bun. Afterwards B.S. returned home with Ms. Smith and went to bed, wearing pajamas with snowmen on them. When Mr. Miles returned to the home, he told Ms. Smith about the honey bun. Ms. Smith called B.S. into the family room. From this point forward, the evidence and the testimony of the witnesses differs significantly. According to Ms. Smith, Ms. Miles, and Mr. Miles, Ms. Smith called B.S. into the family room and asked him about the honey bun incident. He told her he was just looking at the pastry. They further testified that Ms. Smith talked to B.S. about "making bad choices" and sent him back to bed. Ms. Smith, Ms. Miles, Ms. Parham, and Mr. Miles all testified that Ms. Parham was not present because she was with friends in Orlando. Mr. Miles, Ms. Miles, and Ms. Smith are adamant that Ms. Miles did not tase or pepper spray B.S. They also agree that Ms. Parham was not present during the conversation with B.S. about the honey bun because she was in Orlando. And they agree he was not made to sleep in the laundry room. According to B.S., when Ms. Smith called him from his room, all the adults, including Ms. Parham, were present in the family room. He says that when he denied preparing to steal the honey bun, Ms. Smith stated, "No you are lying." In his interviews, B.S. stated that Ms. Miles went to her car and returned with a pink can of pepper spray and a pink "taser" and began tasing him. He said that Ms. Miles tased him five or six times on his upper left arm and the left side of his chest. The taser got tangled in his pajamas he said. Then Ms. Miles began spraying him with pepper spray. According to B.S.'s statements, the adults sent him outside to wash the pepper spray from his face. He then went to bed in the laundry room. He said that Ms. Smith did not intervene. In deposition, subject to cross examination, B.S. amplified and expanded his claims to the point of incredulity. For instance, in his interviews he said Ms. Miles had tased him five or six times the night of June 16. In his deposition testimony, B.S. testified "they were tasing me all over the house." (R. Ex. K, p. 52). He also testified that the tasing went on for two or three hours. He volunteered that Ms. Miles tased him 50 times. He also said that it could have been 100 times. He said his pajamas had 50, maybe 100 holes from the tasing. (R. Ex. K, p. 52). These claims differ significantly from those made in his interviews. Detective Lewis found only one hole that he thought could have been caused by a taser. According to B.S., Ms. Smith did not attempt to intervene to stop Ms. Miles. She also did not report the alleged incident to law enforcement. Ms. Miles, Mr. Miles, and Ms. Smith all firmly denied the allegations of tasing and pepper spraying the night of June 16. During the videotaped interview, B.S. first claimed that Ms. Miles tased him three or four times when on the patio Memorial Day. He did not mention this in his earlier interviews. His deposition testimony about tasing on the patio was very different from his interview statements. He testified that Ms. Miles tased his entire chest and stomach up to his neck Memorial Day. He said Ms. Smith was on the patio and Ms. Parham was sitting on a couch inside looking out. At first, he said Ms. Miles tased him 20 times. He went on to say it was more than 20, maybe 50 or 100 times. He said the Memorial Day tasing lasted from about 6:00 p.m. to 11:00 p.m. He also testified that Ms. Smith and Ms. Miles stayed on the patio the entire time. Ms. Parham, he said, stayed sitting on the couch watching the entire time. Nobody took a break, went to the restroom, or got something to drink, according to B.S.'s testimony. Ms. Miles, Ms. Smith, and Ms. Parham all credibly deny this account. In addition, the claims are implausible because of the varying numbers of tasings claimed and the length of time B.S. said the tasings went on, as well as nobody leaving the patio for five hours. In the course of the interviews and his deposition, B.S. made claims of being hit by a broom, hit by a spoon, made to sleep in the garage, and made to sleep in the laundry room. Ms. Smith denied these allegations. They are not corroborated. The evidence to support these claims is not clear and convincing. B.S.'s shifting version of events, the firm, convincing denials of all other witnesses, and the inconsistency of only one burn on the pajamas from four to six tasings, let alone 50 to 100, keep the evidence of the tasing and pepper spraying from being clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Children and Families, enter a Final Order granting the license renewal application of Petitioner, Laura's Learning and Enrichment Center. DONE AND ENTERED this 19th day of April, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2021. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Hannah George, Esquire Law Firm of Gil Colon, Jr. 325 East Davidson Street Bartow, Florida 33830 Raquel Ramos, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent, Highland Christian Academy (HCA), committed a violation of child care licensing law and, as a result, must lose its designation as a Gold Seal Provider.
Findings Of Fact DCF is the state agency charged with the responsibility of regulating child care facilities operating in the State of Florida. At all times material to the allegations of this case, HCA operated a child care facility designated as a Gold Seal Provider by DCF. HCA is exempt from licensing standards as a religious provider. However, as a designated Gold Seal facility it must comply with licensing standards to retain its designation. In this case DCF alleged HCA failed to timely report an incident of possible child abuse as required by Florida law. All licensed child care providers must immediately report incidents of suspected abuse without delay. Any unexplained injury to a child attending a child care facility must be reported and investigated. Pertinent to this case was an unexplained injury to a minor child who attended HCA on or about January 29, 2018. Mrs. M. (the minor child’s mother whose name is intentionally omitted) noticed some marks on her child when she picked the child up from daycare. Her initial inquiry regarding the marks was dismissed as a probable play yard injury. That evening while she was bathing the child Mrs. M. noticed distinct marks and bruises that she believed looked like the child had been grabbed. Mrs. M. photographed the marks and bruises to memorialize the locations and severity of the bruises. The bruises could have easily been the result of a hand grabbing the child as there were five distinct marks that would align with finger imprints. The next day, January 30, 2018, Mrs. M. approached the HCA school director to show her the photographs of the child and to further inquire as to how the marks were made. It was logical for Mrs. M. to question how her child could have received the marks. Instead of reporting the unexplained marks to the state (DCF) as required by law, the school director asked Mrs. M. to allow her additional time to investigate the matter. Later in the week the school director acknowledged that the marks/bruises should have been reported and that the child’s teacher failed to report the incident that caused the injuries. Eventually the matter was reported to DCF and an investigator met with Mrs. M. to review the facts of the incident. As several days had passed, no conclusion could be reached as to how the marks/bruises were made. The investigator did verify that the child had sustained an injury that should have been reported. As a Gold Seal child care provider, HCA is subject to licensing inspections to ensure compliance with all DCF regulations. In this case a licensing counselor was advised of a possible licensing violation regarding the incident with Mrs. M.’s child. After investigating the matter, the DCF counselor determined HCA had failed to timely report the incident of suspected child abuse. According to the licensing counselor, Florida Administrative Code Rule 65C-22.010 requires suspected child abuse to be reported to the hotline without delay. The failure to do so constitutes a Class I Violation of Child Care Licensing Standards. HCA terminated the employment of the school’s director who had failed to timely contact the hotline regarding suspected abuse. Additionally, HCA terminated the child’s teacher. Next, HCA took steps to educate all staff of the child care facility as to the reporting requirements for incidents related to suspected abuse. HCA maintains that it took all action reasonably available to assure it would comply with all licensing standards. Further, HCA asserts that the loss of the Gold Seal designation adversely impacts its families who might not be able to obtain assistance funding only available to Gold Seal-designated facilities.
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 revoking the Respondent’s Gold Seal designation. DONE AND ENTERED this 30th day of July, 2018, 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 30th day of July, 2018. COPIES FURNISHED: Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129 400 West Robinson Street Orlando, Florida 32801 (eServed) Manisha Williams, Office Manager Highland Christian Academy 441 South Highland Avenue Apopka, Florida 32703 Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 2, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
