01-001535 Department Of Children And Family Services vs. Wekiva Child Care Status: Closed Recommended Order on Wednesday, September 12, 2001.

Summary: The Department properly assessed an administrative penalty of $500 against child care center that failed to provide adequate supervision to a child while on a field trip sponsored by the center.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-1535

)

WEKIVA CHILD CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Carolyn S. Holifield, conducted a formal hearing in the above-

styled case on July 17, 2001, by videoconference. The parties,

counsel, witnesses and court reporter participated from the Zora

Neale Hurston Building, Orlando, Florida; the Administrative Law

Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner : Craig A. McCarthy, Esquire

Department of Children and Family S ervices

400 West Robinson Street, Suite S-1106

Orlando, Florida 32801

For Respondent : Mark Riley, pro se

Wekiva Child Care

2333 East Semoran Boulevard

Apopka, Florida 32703

STATEMENT OF THE ISSUES

The issues are whether Respondent violated Rule 65C-

22.001(5)(a), Florida Administrative Code, as alleged in the

Administrative Complaint and, if so, should it be assessed a

$500.00 administrative fine for the violation.

PRELIMINARY STATEMENT

On or about Ju ly 26, 2000, Petitioner, the Department of

Children and Family Services, filed an Administrative Complaint

against Respondent, Wekiva Child Care. The Administrative

Complaint alleged that Respondent failed to provide adequate

supervision for a child in its care, in violation of

Rule 65C-22.001(5)(a), Florida Administrative Code. For this

alleged violation, the Department sought to impose an

administrative fine of $500.00.

According to the Administrative Complaint, the charge that

Respondent failed to provide adequate supervision is based on

the following factual allegations: (1) on April 20, 1999, while

on a field trip to Chuck E. Cheese, an amusement center and

restaurant, staff of Wekiva Child Care left a three-year-old

female child in its care without direct supervision for at least

two minutes, without staff realizing she was not with the group;

(2) the child left the group without staff's knowledge and went

back inside the restaurant; and (3) the child was missed by

staff as they boarded the van and a final count of the children

was made. Respondent disputed the allegations and requested a

hearing under Section 120.569, Florida Statutes, to contest the

proposed action.

The matter was referred to the Division of Administrative

Hearings on April 25, 2001, with a request that an

administrative law judge be assigned to conduct a hearing and

prepare a recommended order. By Notice of Hearing dated May 4,

2001, a final hearing was scheduled for June 28, 2001. Prior to

the date set for the final hearing, on June 18, 2001, the

parties filed an Agreed Motion to Continue Proceedings (Motion).

By Order issued June 22, 2001, the Motion was granted and the

hearing was rescheduled for July 17, 2001.

At the final hearing, Petitioner presented the testimony of

Anna Johnson, a former employee of Respondent, and Carmen

Burruezo, a child care licensing counselor with the Department

of Children and Family Services. Petitioner offered and had its

Composite Exhibit A received into evidence. Mark Riley, owner

of Wekiva Child Care, testified on behalf of Respondent. No

exhibits were offered into evidence by Respondent. At the

request of Petitioner, the undersigned took official recognition

of Chapter 402, Florida Statutes, and Rule Chapter 65C-22,

Florida Administrative Code.

A copy of the Transcript was filed on August 6, 2001.

Petitioner's Proposed Recommended Order was filed on August 16,

2001. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, the Department of Children and Fam ily

Services, is the state agency responsible for the licensure and

regulation of child care facilities operating in the State of

Florida.

2. Respondent, Wekiva Child Care (Wekiva Center), is a

licensed child care facility, Florida license number 497-8,

located at 2333 East Semoran Boulevard in Apopka, Florida. The

facility has been licensed since May 1997.

3. On April 20, 1999, the staff of Wekiva Center took 34

children on a field trip to Chuck E. Cheese, an amusement center

and restaurant. The children were transported from the Center

to Chuck E. Cheese in two vans.

4. Each of the vans had a maximum seating capacity of 15.

This included 1 seat for the driver and 14 seats for passengers.

5. Mark Riley, the owner of the Wekiva Center, and his

two-year-old daughter also went to Chuck E. Cheese for the

April 20, 1999, field trip. However, Mr. Riley and his daughter

did not ride in either of the Center's vans to Chuck E. Cheese.

Instead, Mr. Riley, accompanied by his daughter, drove his

personal vehicle to Chuck E. Cheese and met the Wekiva Center

staff and children there.

6. Typically, Mr. Riley does not work at the Wekiva

Center. However, in order to comply with the staff/child ratio

requirements governing field trips, Mr. Riley went to Chuck E.

Cheese to assist with the supervision of the children.

7. The Wekiva Center staff and children from the Center

were at Chuck E. Cheese approximately three hours. When the

field trip concluded, all the staff and children from the Wekiva

Center exited Chuck E. Cheese and lined up in front of the

building. Then, one staff person and 14 children boarded each

of the vans for the return trip to the Wekiva Center.

8. The one-way return trip from Chuck E. Cheese to the

Wekiva Center took approximately five or six minutes.

9. Due to the 14-seat maximum passenger capacity of the

Center's vans, six children and one teacher had to remain at

Chuck E. Cheese. These children and the teacher with them went

from the front to the side of the Chuck E. Cheese building and

waited for one of the vans to return and pick them up and drive

them back to the Center.

10. After the two vans returned to the Center and the

28 children got off , one of the vans went back to Chuck E.

Cheese to retrieve the six children and one teacher who were

outside the restaurant waiting for the van to return.

11. At some point between when the six children and one

teacher went from the front to the side of the Chuck E. Cheese

building, one of the children, a three-year-old girl, left the

group and went back inside Chuck E. Cheese to go to the

restroom.

12. Mr. Riley and his daughter had remained in the

Chuck E. Cheese facility while the children and staff from the

Center exited and lined up to go outside the building.

13. Soon after the children and staff had boarded the two

vans and the vans departed for the Center, Mr. Riley saw the

three-year-old girl from the Center inside Chuck E. Cheese.

Mr. Riley then went outside and looked in the front of the

building for children and teachers from the Wekiva Center. When

Mr. Riley did not see anyone from the Wekiva Center, he

mistakenly assumed that they had all left Chuck E. Cheese and

returned to the Center.

14. From the front of the Chuck E. Cheese building,

Mr. Riley could not see the side of the facility. Therefore, he

did not know that a few children and one teacher from the Wekiva

Center had not left Chuck E. Cheese but were on the side of the

building waiting for one of the vans to return to pick them up

and take them back to the Center.

15. When Mr. Riley did not see any staff or children from

the Wekiva Center in front of Chuck E. Cheese, he mistakenly

believed that, except for the three-year-old girl who had gone

back into the restaurant, everyone from Wekiva Center had left

Chuck E. Cheese and returned to the Center.

16. Mr. Riley had driven his personal vehicle to Chuck E.

Cheese and could have driven the three-year-old child back to

the Center. However, because of his concerns about possible

liability issues associated with his transporting the child,

Mr. Riley decided it was better to have the child transported

back to the school in one of the Center vans by Center staff.

17. Based on Mr. Riley's mistaken belief that the three-

year-old girl had been inadvertently left at Chuck E. Cheese, he

asked the manager of Chuck E. Cheese to call Wekiva Center and

tell someone at the Center that a child had been left at the

restaurant and that a van from the Center should return to

Chuck E. Cheese to retrieve her.

18. As requested, the manager of Chuck E. Cheese called

the Center and relayed Mr. Riley's message, that a van be sent

back to Chuck E. Cheese to pick up the three-year-old girl from

the Center who had left the group and had gone back into the

restaurant.

19. At the time Mr. Riley asked the manager at Chuck E.

Cheese to call the Wekiva Center, one of the Center vans was

either in route to or about to leave the Center for the return

trip to Chuck E. Cheese to pick up the children and teacher who

were still waiting on the side of the Chuck E. Cheese building.

Mr. Riley was still unaware that there were five children and a

teacher from the Center waiting on the side of the building for

the van to return for them.

20. Apparently, when the van returned for the remaining

Wekiva Center teacher and children, and prior to the van's

departing for the return trip to the Center, someone determined

that the three-year-old girl was not with the group. Soon

thereafter, the girl was located inside the Chuck E. Cheese

restaurant. She then boarded the van and returned to the Center

on the van with the other five children and one teacher who had

been waiting for the van's return trip to Chuck E. Cheese.

21. It is unclear how much time elapsed between the time

the three-year-old girl left the group that was outside

Chuck E. Cheese and the time she was observed in the restaurant

by Mr. Riley. Nevertheless, for this period of time, the girl

was not supervised as evidenced by the fact that the Center

staff person supervising the children outside the restaurant did

not know that the girl had left the group and re-entered the

restaurant. Moreover, although Mr. Riley had remained in

Chuck E. Cheese, he assumed responsibility for the girl only

after he realized that she was in the restaurant without other

supervision. Mr. Riley did not see the girl leave the group

and, by his own admission, when he saw the girl, he believed

that everyone else from the Center had left Chuck E. Cheese. If

Mr. Riley had seen the three-year-old girl leave the supervised

group of children and re-enter the restaurant, he would have

known that all the children and staff from the Center had not

left the restaurant.

22. For the period of time that elapsed between the time

the three-year-old girl left the supervised group of children

who were outside the Chuck E. Cheese building and the time that

Mr. Riley discovered her inside the restaurant, the girl was not

supervised.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceedings pursuant to Sections 120.569 and 120.57, Florida

Statutes.

24. As the party seeking to impose an administrative fine,

Petitioner bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern , 670 So. 2d

932 (Fla. 1996).

25. Section 402.310(1), Florida Statutes, governs the

proceeding and authorizes the Department to impose an

administrative fine for any violation of any provisions of

Sections 402.301 through 402.319, Florida Statutes, or rules

adopted thereunder. That provision also sets forth the factors

that the Department should consider in determining the

appropriate disciplinary action to be taken for a violation.

26. Section 402.310, Florida Statutes, provides in part the

following:

(1)(a ) The department or local licensing

agency may deny, suspend, or revoke a

license or impose an administrative fine not

to exceed $100 per violation, per day, for

the violation of any provision of ss.

402.301-402.319 or rules adopted thereunder.

However, where the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day.

(b ) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resulted, the

severity of the actual or potential harm,

and the extent to which the provisions of

ss. 402.301-402.319 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee.

27. The Administrative Complaint alleges that Respondent

violated Rule 65C-22.001(5)(a), Florida Administrative Code, by

failing to supervise a child on a field trip. That rule provides

in relevant part the following:

(5 ) Supervision.

(a ) Direct supervision means watching and

directing children's activities within the

same room or designated outdoor play area

and responding to each child's need. Child

care personnel at a facility must be

assigned to provide supervision to a

specific group of children and be present

with that group of children at all times.

28. By clear and convincing evidence, Petitioner has

established that Respondent violated Rule 65C-22.001(5)(a),

Florida Administrative Code, by failing to provide direct

supervision to a three-year-old child while on a field trip.

This violation could have resulted in serious harm to the child.

Therefore, the administrative fine suggested in the

Administrative Complaint of $500.00, per violation, per day, is

found to be appropriate for the violation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Services enter a final order finding that Respondent violated

Rule 65C-22.001(5)(a), Florida Administrative Code, and that it

imposes an administrative fine of $500.00.

DONE AND ENTERED this 12th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of September, 2001.

COPIES FURNISHED :

Craig A. McCarthy, Esquire

Department of Children and Family Services

400 West Robinson Street

Suite S-1106

Orlando, Florida 32801

Mark Riley

Wekiva Child Care

2333 East Semoran Boulevard

Apopka, Florida 32703

Virginia A. Daire, Agency Clerk

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order must be filed with the agency that

will issue the Final Order in this case.