98-000951 Department Of Children And Family Services vs. Eleanor Pennell, D/B/A Miss Ellie`s Child Care Center Status: Closed Recommended Order on Thursday, July 2, 1998.

Summary: Child care facility did not meet licensing criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 98-0951

)

ELEANOR PENNELL, d/b/a )

MISS ELLIE'S CHILD CARE CENTER, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 28, 1998, in Vero Beach, Florida, before Claude B.

Arrington, a duly designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffrey Dana Gillen, Esquire

Department of Children and Family Services

1690 Northwest Ninth Avenue

Okeechobee, Florida 34972

For Respondent: Roger W. LaJoie, Esquire

Robin A. Lloyd, Sr. and Associates, P.A.

660 Beachland Boulevard, Suite 201

Vero Beach, Florida 32963

STATEMENT OF THE ISSUE

Whether Respondent failed to meet the criteria for renewal

of her license to operate her day care center.

PRELIMINARY STATEMENT

Prior to November 1997, Respondent owned and operated a day

care center in Vero Beach, Florida, known as Miss Ellie's Child

Care Center. Prior to November 7, 1997, Respondent applied for

the renewal of her license to operate the day care center. On

October 29, 1997, the subject premises were inspected by

Sue Banek, a day care licensing counselor employed by Petitioner.

Ms. Banek inspected the subject premises again on November 4,

1997. In a letter dated November 11, 1997, Petitioner set forth

certain deficiencies found by Ms. Banek's inspections and granted

Respondent a provisional license for a period of two-months.

Respondent was instructed to correct the deficiencies during the

two-month period. Ms. Banek inspected the premises again on

November 11, 1997, and December 12, 1997. On December 18, 1997,

Petitioner notified Respondent of continuing and additional

deficiencies. Petitioner also notified Respondent that her

facility would be closed if the noted deficiencies were not

corrected. Ms. Banek inspected the subject facility on

January 5, 1998. On January 9, 1998, Petitioner extended

Respondent's provisional license until February 11, 1998, and

provided a schedule for the facility to come into compliance with

the noted deficiencies. The letter of January 9, 1998, advised

Respondent that her facility would be inspected on January 12 and

16, 1998. By letter dated February 5, 1998, Petitioner advised

Respondent that her provisional letter was being revoked and

stated the reasons for that action. On February 6, 1998,

Petitioner filed an "Administrative Complaint" which recited

certain facts and which provided, in part, that Respondent's

license to operate the subject day care center was revoked

effective February 11, 1998. By letter dated February 10, 1998,

Respondent challenged the proposed agency action. The matter was

thereafter referred to the Division of Administrative Hearings,

and this proceeding followed.

At the formal hearing, Petitioner presented the testimony of

seven witnesses and presented thirteen exhibits, each of which

was accepted into evidence. Respondent presented the testimony

of three witnesses and presented three exhibits, each of which

was accepted into evidence. In addition, the parties stipulated

that there were additional parents present who were prepared to

testify that they were pleased with the day care being provided

to their children by Respondent's facility.

No transcript of the proceedings has been filed. At the

request of the parties, the time for filing post-hearing

submissions was set for more than ten days following the hearing.

Consequently, the parties waived the requirement that a

recommended order be rendered within thirty days after the

hearing. Rule 60Q-2.031, Florida Administrative Code. The

Petitioner and Respondent filed proposed recommended orders,

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding prior to

February 11, 1998, Respondent, Eleanor Pennell, was duly licensed

by Petitioner (or its predecessor agencies) and was the owner and

operator of Miss Ellie's Child Care Center in Vero Beach,

Florida.

2. Respondent's license for the year 1996-97 was scheduled

to expire November 10, 1997. Respondent applied to Petitioner

for a renewal of her license. The effective date of the annual

renewal, had it been granted, would have been November 11, 1997.

3. Respondent timely applied for the renewal of her

license.

4. As part of the renewal process, the subject premises

were inspected on October 29, 1997, by Sue Banek, a day care

licensing counselor employed by Petitioner. 1 Ms. Banek completed

a form entitled "Child Care Facility Inspection Checklist"

(Checklist) wherein she noted several deficiencies. Ms. Banek

discussed those deficiencies with Ms. Pennell. Named as

deficiencies were the following items: the children's

applications were not properly filled out; the planned activities

were not properly posted; the personnel applications were not

complete; personnel had not been properly screened or trained;

the yard needed to be cleaned; and locks needed to put on

cabinets.

5. Ms. Banek inspected the subject premises again on

November 4, 1997, and completed another checklist. Again, Ms.

Banek discussed her findings with Ms. Pennell. The deficiencies

noted by Ms. Banek were the subject of a Corrective Action Plan

attached to a letter to Ms. Pennell dated November 11, 1997. By

this letter, Petitioner granted Respondent a provisional license

for a period of two-months, but instructed her to correct the

deficiencies during the two-month period as provided by the

Corrective Action Plan. The provisional license was scheduled to

expire January 11, 1998.

6. The Corrective Action Plan for Respondent provided as

follows:

Corrective action to be completed no later

than dates given for each item.

1) Personnel files are to be set up

reflecting staff physicians, including TB

tests, copies of driver's licenses,

application, reference checked, form 5131

(blue card) and training card for training

completed (yellow card) by November 13, 1997.

2) Standing water drained daily an horse

[sic] shampoo bottles removed immediately.

3) Crawl space securely covered by

November 13, 1997.

4) Broken or cracked toys removed from

playground by November 13, 1997.

5) Kitchen cabinets cleaned and secured by

November 13, 1997.

6) Staff will be enrolled in training by

January 9, 1998.

7) Affidavit of compliance available by

November 13, 1997.

8) Radon testing initiated or copy

supplied to Licensing Counselor by

November 13, 1997.

7. Ms. Banek inspected the premises again on November 11,

1997, and December 12, 1997. On December 18, 1997, Petitioner

wrote Ms. Pennell a follow-up letter, which discussed Ms. Banek's

findings, in pertinent part, as follows:

The recent issue [sic] of a PROVISIONAL

license #091278 to provide day care services

for children at Miss Ellie's Child Care

Center is conditional on a number of very

important concerns that have been addressed

with you by the below named counselor

(Ms. Banek) and in a Corrective Action Plan

dated 11/7/97. In addition, a cover letter

dated November 11, 1997, with the provisional

license indicated the importance of getting

these deficiencies corrected immediately.

Our inspection status at this point has found

little improvement in the conditions of your

child care facility. Consequently, we are

placed in a position of having to notify you

that the closing of your facility is imminent

unless you can satisfy all requirements

within two weeks of the date of this letter.

These requirements include:

1. Posting this letter and the provisional

license issued in a conspicuous place inside

of and near the entrance to your facility

where it is clearly visible to visitors.

2. A complete cleaning and refurbishing of

the furniture, equipment, playthings, and

other equipment used or contacted by the

children. Cabinets, kitchen, and food

equipment need also to be cleaned thoroughly.

All tools and implements and toxic and

hazardous material must be secured in locked

storage or placed in areas totally

inaccessible by the children. Child-proof

safety locks must be installed on all doors

that children can reach that contain any

substance or materials potentially harmful to

them. All bottles, glass jars, opened food,

and other containers must be stored

completely away from child care areas or

where children can access them.

3. Preparation and completion of all child

and staff files so that our counselor can

satisfactorily review these files.

4. Planned child care activities are

required for all children over one year of

age. The activity scheduled needs to be

posted an followed by your staff.

5. All items recorded on the Environmental

Health form 12/16/97 must be satisfied and

the follow-up inspection planned by that

office on 12/30/97 must be satisfactory with 2

a recommendation for licensing so stated.

6. You have been found to be absent when

children are in care at your facility. Our

understanding is that this leaves no one

responsible for children that is certified to

administer first aid or CPR. A person

trained in this [sic] must be on premises at

all times the children are present.

7. We understand that you are transporting

children in your personal auto that may not

be covered by proper insurance nor has it had

the required annual inspection. Children

must not continue to be transported in this

manner.

8. We understand you acknowledge you have

not had the required TB test. This must be

corrected.

We are mandated to inform you that

continued non-compliance will result in fines

and/or suspension or revocation of your

license. Within the next week we will

contact you for information on actions you

have taken to improve the conditions. We

will review the provisional status of your

license no later than January 5, 1998. We

ask for you to see that all conditions

needing correction are fully satisfied before

that date.

8. Ms. Banek inspected the facility again on January 5,

1998. Her inspection checklist noted several deficiencies that

she discussed with Respondent. Those deficiencies were discussed

in more detail in a letter dated January 9, 1998. By this

letter, Petitioner issued a second provisional license to

Respondent, which was valid until February 11, 1998.

9. Attached to the letter of January 9, 1998, was a

statement of the deficiencies that required correction. That

statement provided, in pertinent part, as follows:

Provisional status has resulted due to non-

compliance of the requirements of sections

402.301-319, Florida Statutes, and 65C-22,

Florida Administrative Code. Specific items

needing attention and discussed with you

during an inspection visit of January 6,

1998, include:

1. Standards for supervision of children

imposes staff/child rations per S. 402.305(4)

and (5)(a) and (b), Florida Statutes. You

have been found to be absent from the

facility which violated the staff/child ratio

requirements. You must provide information

as to how you will correct this no later than

January 12, 1998.

* * *

2. You must provide a written discipline

policy for our inspection per S. 402.305(12),

Florida Statutes, that is made available to

parents and staff. Signed statements need to

be available in staff and children's records

indicating that the policy has been explained

and understood. You have not completed this.

A written discipline policy must be made

available for inspection no later than

January 12, 1998. The signed statement must

be in all staff and children's records no 3

later than January 16, 1998.

* * *

3. Kitchen cabinets are full of materials

and items that are hazardous and/or threaten

the health and safety of young children.

This must be corrected satisfactorily by

January 12, 1998, to meet the provisions of

S. 402.305(5), Florida Statutes.

* * *

4. Monthly fire drills are required by

S.402.305(5), Florida Statutes. A record of

these must be kept and posted. You must

indicate compliance with this by having a

fire drill in our presence on January 12,

1997 [sic] and by maintaining these 4

requirements.

* * *

aining standards are described in

S.402.305(2)(b). Our inspection found no

documentation of training for you for the

preceding year and one half nor any evidence

of payment for enrollment in training for

Jessica Green within her first 90 days of

employment. You need to provide written

documentation of enrollment in training for

both of you by January 16, 1998.

* * *

6. Emergency telephone numbers must be

posted per S.402.305(2)(e). This must be

completed satisfactorily by January 12 1998.

* * *

7. Personnel files must include specific

documents defined by S.402.302(8), Florida

Statutes. Inspection of these files shows no

employment application for Jessica Green.

This must be completed and provided for the

file by January 12, 1998.

* * *

8. The documents required in children's

files are defined in S.402.305(9). All

missing or incomplete documents must be

corrected and in respective files by January

16, 1998. No child may attend your facility

without a complete enrollment application on

file beginning January 12, 1998.

* * *

9. Deficiencies cited in the county

environmental inspection have not been

corrected. Those deficiencies are listed on

the documentation dated 12/30/97 and must be

found to be corrected by January 16, 1998.

10. Ms. Banek inspected the facility on January 12 and on

January 16, 1998. Petitioner prepared a letter dated February 5,

1998, that purported to revoke Respondent's day care license

effective at the close of business on February 11, 1998. That

letter provided, in pertinent part, as follows:

This office informs you that your license

#091278 to operate Miss Ellie's Child Care

and Preschool Center is hereby REVOKED FOR

UNCORRECTED VIOLATIONS found by the

Department. You must not continue to provide

day care for children unrelated to you or for

a fee, and you must immediately surrender

your certificate to this office. We must ask

your cooperation so that further legal action

does not become necessary.

Our inspection activities find that the

requests for corrective action plans provided

to you with our letters of November 11 and

December 18, 1997, and the list of specific

compliance requirements per our letter of

January 9, 1998, with the issue of a

provisional license have not been satisfied.

You have not made the required efforts to

improve the conditions for the safe

protection and care of children. Licensed

day care facilities must fully meet the

provisions of Chapter 402.301-319, Florida

Statutes, and Rule 65C-22, Florida

Administrative Code, copies of which have

been provided.

The facts known to this office include:

1. On November 11, 1997, you were issued a

provisional license valid for two-months to

allow you time to satisfy a corrective action

plan prepared with you. Numerous violations

of licensing standards were listed in that

plan that needed correction. Some of these

standards have not yet been made.

2. After inspection visits during the

provisional license period, a letter dated

December 17, 1997, was sent to you by

certified mail specifying the particular

items needing immediate correction for the

lifting of the provisional license. You were

informed by this letter that revocation of

your license could ensue if standards were

not met.

3. A letter dated January 9, 1998, was

sent to you with an up-dated [sic] corrective

action plan enclosed that specified the

compliance needed and a date by which to

correct each deficiency noted. Your

provisional license was extended for ONE

month, until February 11, 1998, based on some

progress that you had made on your corrective

plan.

4. Follow-up by our counselor on

January 12 and 16, 1998, found only two of 5

the eight deficiencies noted to be corrected

with no progress on the remaining six. The

corrective action plan developed with you has

not produced changes that adequately provide

for safe child day care in your

facility. . . .

12. On February 6, 1998, Petitioner filed an Administrative

Complaint against Respondent that tracked the language of the

revocation letter dated February 5, 1998.

13. On February 11, 1998, Respondent closed her day care

center.

14. Respondent made substantial progress in correcting the

various deficiencies cited by Ms. Banek up to February 11, 1998,

but only two had been completely corrected. Of the remaining

deficiencies, three stand out. Despite the fact that Ms. Banek

worked with Respondent with the records that had to be kept,

Respondent's files for the children and personnel were not

complete and they were in disarray. 6 Second, Respondent

continued to store hazardous materials in an unsafe manner,

despite having been repeatedly warned about the potential danger.

Third, personnel was not appropriately trained 7 and staffing

ratios were not up to standards.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

16. Section 402.301-402.319, Florida Statutes, regulates

child care in Florida. Section 402.301, Florida Statutes, sets

forth legislative intent, in pertinent part, as follows:

It is the legislative intent to protect the

health, safety, and well-being of the

children of the state and to promote their

emotional and intellectual development and

care. Toward that end:

(1) It is the purpose of ss. 402.31-

402.319 to establish statewide minimum

standards for the care and protection of

children in child care facilities, to ensure

maintenance of these standards . . .

(2) It is the intent of the Legislature

that all owners, operators, and child care

personnel shall be of good moral character.

17. Petitioner has the burden of proving by clear and

convincing evidence the allegations against Respondent. See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Evans Packing

Co. v. Department of Agriculture and Consumer Services ,

550 So. 2d 112 (Fla. 1st DCA 1989).

18. Section 402.305, Florida Statutes, contains licensing

standards for child care facilities. Chapter 65C-22, Florida

Administrative Code, contains rules that implement those

standards.

19. Petitioner established by clear and convincing evidence

that Respondent's facility did not meet the staff to child ratios

set forth in Section 402.305(3), Florida Statutes, and

Rule 65C-22.001(4), Florida Administrative Code.

20. Petitioner established by clear and convincing evidence

that Respondent's facility did not meet the sanitation and safety

standards set forth in Section 402.305(7), Florida Statutes, and

Rule 65C-22.002, Florida Administrative Code.

21. Petitioner established by clear and convincing evidence

that Respondent's facility did not keep adequate records as

required by Section 402.305(9), Florida Statutes, and

Rule 65C-22.006, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a Final Order that

denies Respondent's application for renewal of her day care

license without prejudice to her right to apply for licensure in

the future.

DONE AND ENTERED this 2nd day of July, 1998, in Tallahassee,

Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of July, 1998

ENDNOTES

1/ Respondent asserts that Ms. Banek consistently exaggerated

the conditions at the facility and that she inspected the

facility with an overly critical eye. The assertion that

Ms. Banek exaggerated the conditions of the facility is rejected.

The undersigned finds Ms. Banek's testimony to be clear,

convincing, and accurate. The assertion that she was unfairly

critical is also rejected. It is clear from the record that

Ms. Banek worked with Respondent in an attempt to bring the

facility into compliance with licensing criteria.

2/ The Environmental Health form and follow-up inspection were

prepared by the County Health Department following inspections on

December 16 and December 30, 1997. The facility inspection

report dated December 16, 1997, and the accompanying food service

report on that date noted were classified unsatisfactory because

of the deficiencies noted by the reports. The facility

inspection report dated December 30, 1997, noted four

deficiencies, but was classified as satisfactory. The four

deficiencies noted by that report pertained to broken toys in the

play area, a partially consumed apple in the play area, a worn

toilet seat, and torn sleeping mats. The food inspection report

dated December 30, 1997, also noted a deficiency, but was

classified as satisfactory. The deficiency noted by that report

pertained to the floor in the food preparation area that was in

need of repair.

3/ This deficiency was corrected January 12, 1998.

4/ This deficiency was corrected January 12, 1998.

5/ The reference to eight deficiencies was an error. There were

nine deficiencies noted in the attachment to the letter of

January 9, 1998.

6/ The finding that the files were in disarray is based on the

testimony that certain files and certain items in files could not

be located for inspection.

7/ Respondent established that the training class she and her

staff planned to attend was not available during the deadlines

set by Petitioner. There was no evidence as to whether other

training classes were available. The unavailability of this one

class was not shown to justify the training deficiencies. There

was inadequate staff trained in infant CPR, which is considered

by the undersigned to be a serious deficiency.

COPIES FURNISHED:

Jeffrey Dana Gillen, Esquire

Department of Children and Family Services

1690 Northwest 9th Street

Okeechobee, Florida 34972

Roger W. LaJoie, Esquire

Robin A. Lloyd & Associates, P.A.

660 Beachland Boulevard, Suite 201

Vero Beach, Florida 32963

Gregory D. Venz, Agency Clerk

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

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 should be filed with the agency that will

issue the final order in this case.

1 Respondent asserts that Ms. Banek consistently exaggerated the conditions

at the facility and that she inspected the facility with an overly critical

eye. The assertion that her testimony exaggerated the conditions of the

facility is rejected. The undersigned finds Ms. Banek's testimony to be

clear, convincing, and an accurate description of the facility. The assertion

that she was unfairly critical is also rejected. It is clear from the record

that Ms. Banek worked with Respondent in an attempt to bring the facility into

compliance.

2 The Environmental Health form and follow-up inspection were prepared by

the County Health Department following inspections on December 16 and December

30, 1997. The facility inspection report dated December 16, 1997, and the

accompanying food service report on that date noted were classified

unsatisfactory because of the deficiencies noted by the reports. The facility

inspection report dated December 30, 1997, noted four deficiencies, but was

classified as satisfactory. The four deficiencies noted by that report

pertained to broken toys in the play area, a partially consumed apple in the

play area, a worn toilet seat, and torn sleeping mats. The food inspection

report dated December 30, 1997, also noted a deficiency, but was classified as

satisfactory. The deficiency noted by that report pertained to the floor in

the food preparation area that was in need of repair.

3 This deficiency was corrected January 12, 1998.

4 This deficiency was corrected January 12, 1998.

5 The reference to eight deficiencies was an error. There were nine

deficiencies noted in the attachment to the letter of January 9, 1998.

6 The finding that the files were in disarray is based on the testimony that

certain files and certain items in files could not be located for inspection.

7 Respondent established that the training class she and her staff planned

to attend was not available during the deadlines set by Petitioner. There was

no evidence as to whether other training classes were available. The

unavailability of this one class was not shown to justify the training

deficiencies. There was inadequate staff trained in infant CPR, which is

considered by the undersigned to be a serious deficiency.