99-000264 Department Of Children And Family Services vs. Play Corner Day Care Status: Closed Recommended Order on Friday, September 10, 1999.

Summary: Personnel at the day care center failed to notify the parent of a seriously injured child. The discipline imposed was an administrative fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-0264

)

PLAY CORNER DAY CARE, INC., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Notice was provided and on June 28, 1999, a formal hearing

was held in this case. Authority for conducting the hearing is

set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the Yates Building, City Hall Annex,

Room 431, 231 East Forsyth Street, Jacksonville, Florida. The

hearing was conducted by Charles C. Adams, Administrative Law

Judge.

APPEARANCES

For Petitioner: Roger L. D. Williams, Esquire

Department of Children

and Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

For Respondent: Joseph B. Stokes, III, Esquire

Saalfield, Coulson, Shad

& Jay, P.A.

225 Water Street, Suite 1000

Jacksonville, Florida 32202-4458

STATEMENT OF THE ISSUE

Should Department of Children and Family Services,

Petitioner (the Department), impose an administrative fine of

$1,000 against Play Corner Day Care, Inc., Respondent (Play

Corner), for violating provisions within Rule 65C-22.002, Florida

Administrative Code?

PRELIMINARY STATEMENT

On December 10, 1998, the Department issued an

administrative complaint against Play Corner in the person of

Shirley Ann Dugger, facility operator. In pertinent part the

administrative complaint sought to impose a $1,000 administrative

fine in that:

3. Respondent committed a violation,

FAC Rule [sic] 65C-22.002(9)(b)(1),

65C-22.002(4)(c)(2), and 65C-22.004(3)(d)(2),

in that: During a complaint investigation on

11-24-98, it was confirmed that on 11-19-98,

a child aged two (2) years, sustained serious

injury to her spleen as a result of a fall

from an elevated playdeck. The playdeck

was not suitable for the child's age and

development. During that time, lack of

direct supervision appropriate to the child's

age and area of play resulted in an injury

to the child. Further, the staff failed

to immediately notify the parents of this

serious accident.

On January 7, 1999, Play Corner filed a written response to

the administrative complaint, essentially denying the allegations

in that complaint. Consequently, the case was forwarded to the

Division of Administrative Hearings for an assignment of an

administrative law judge to conduct a hearing to resolve material

disputes of fact, and the hearing ensued.

The Department presented Janet McMahan and Gloria Crosby as

its witnesses. Department's Exhibits numbered 1 and 2 were

admitted as Petitioner's exhibits. Play Corner presented Shirley

Ann Dugger, D.R., Heather Lynn Prescott, and Maurice Murray, Jr.,

as its witnesses. Play Corner Exhibits numbered 1 and 2 were

admitted as Respondent's exhibits.

Official recognition was made of Chapter 65C-22, Florida

Administrative Code.

On July 14, 1999, a hearing transcript was filed. This

meant that proposed recommended orders were due on July 26, 1999.

Play Corner, with the Department's agreement, asked that the

time for filing proposed recommended orders be extended until

August 2, 1999. Counsel for the parties were orally informed

that the motion to extend the time for filing the proposed

recommended orders was granted. Both parties submitted proposed

recommended orders. The proposed recommended orders have been

considered in preparing the recommended order.

FINDINGS OF FACT

1. In accordance with C hapter 402, Florida Statutes, and

rules adopted pursuant to that statute, the Department licenses

child care facilities and has the authority to impose discipline

against the license holders.

2. Play Corner is a licensed child care facility owned and

operated by Ms. Shirley Ann Dugger. Ms. Dugger purchased Play

Corner on April 1, 1994, from the previous owners. The facility

is located in Macclenny, Florida.

3. The outside playground at the facility is divided into

several areas. One area is for school-age kids above the age of

five. Another area is for children under two years old. That

area has small plastic portable play equipment. The third area

is for two-year-olds through five-year-olds. The equipment in

that latter area has two swing sets, a merry-go-round, and an

elevated playdeck with a slide. The slide attached to the

playdeck comes off the front. The playdeck has a ladder that

allows the children to climb up to the platform. The first level

on that playdeck is approximately three feet from the ground. It

is the playdeck provided for the two- to five-year-olds that is

at issue.

4. The playground equipment for the two- to five-year-olds

with the elevated platform and attached slide was purchased

sometime in 1996. Before purchasing that equipment Ms. Dugger

consulted an inspector with the day care licensing agency.

Specifically, Ms. Dugger asked Ms. Deborah Jones about any

existing guidelines from the regulatory agency concerning

appropriateness of playground equipment for various ages of

children who would utilize the equipment. Ms. Jones reported

that there were no set guidelines for determining age

appropriateness of playground equipment. Ms. Jones referred

Ms. Dugger to Mr. Maurice Murray, Jr., who at that time was a

safety inspector for the licensing agency. Ms. Murray reiterated

the comments made by Ms. Jones to the effect that there were no

guidelines for determining the age appropriateness of playground

equipment.

5. In addition to consulting with employees of the

licensing agency, Ms. Dugger spoke with persons at two day care

centers in Jacksonville, Florida, concerning the type of

playground equipment those facilities had for two- to

five-year-olds. Upon that inquiry Ms. Dugger was told that

wooden swings and slides were "the best thing," because of

durability.

6. Following the contacts with licensing agency employees

and day care center personnel, the equipment at issue was

purchased.

7. On September 15, 1998, and again on October 29, 1998,

the Department performed an inspection at Play Corner. An

inspection checklist was completed on each visit. Among the

entries on the checklist was the outdoor play area. On both

occasions the block was checked, indicating compliance with the

expectations in Rule 65C-22.002(4)(c), Florida Administrative

Code. Those inspections did not include observing children at

play on the equipment in the outdoor play area. Ms. Janet

McMahan performed the inspections. Ms. McMahan is a family

services counselor for the child day care licensure unit within

the Department. In conversation she asked the director for Play

Corner about the use of the various playground areas. The

discussion did not extend to whether two-year-olds would be

allowed to use the area in which the playdeck and slide were

found.

8. On November 19, 1998, H.S. was a child receiving care at

Play Corner. On November 19, 1998, she was two years old. On

that date, she arrived at the facility shortly after 6:00 a.m.

It was typical for the child to be left at the day care center

around that time.

9. H.S. was familiar with the playground equipment for

two- to five-year-olds, to include the playdeck and slide. Her

teacher D.R. had never observed H.S. experiencing problems

utilizing that piece of playground equipment. H.S. and other

two-year-olds routinely used the equipment.

10. Around 9:40 a.m., on November 19, 1998, D.R. was

observing the two-year-olds in the outside play area designated

for that age group. Ten children were in her care at that time,

within the limits of appropriate ratios of teachers to children.

The children were at various places in the play area. H.S. had

been observed standing on the playdeck at the three-foot

elevation above the ground. D.R. briefly turned away from H.S.

to remove another child to a picnic table to be placed in

"time-out" for misconduct. After seating that child at the

picnic table, D.R. heard H.S. crying. When D.R. reached H.S.,

the child was on the ground in front of the playdeck in the area

of the ladder. D.R. had not seen the child fall. The time that

transpired from the moment at which H.S. had been seen standing

on the playdeck to finding her on the ground was a brief

interval.

11. On the date in question D.R. moved about so that she

could observe the children at play and provide direct

supervision. Not unexpectedly, D.R. could not observe all

children and provide supervision to them when directing her

attention to the disorderly child who had to be placed in

"time-out."

12. When D.R. reached H.S., she picked the child up and

examined her for any bruises or other marks and found no

evidence. The child cried for a couple of minutes. D.R. took

her over to the picnic table where the child became sleepy and

laid down. H.S. then fell asleep. It was not uncommon for H.S.

to fall asleep in the morning, even while she was eating in her

high-chair. However, those instances of falling asleep in the

high-chair were not in association with an accidental fall. D.R.

was not concerned about H.S.'s sleepy condition following the

fall in that D.R. perceived that H.S. normally fell asleep around

that time.

13. Following the fall, when H.S. was taken inside the

facility, she did not eat lunch because she was still sleepy.

About an hour after lunch, H.S. began to whine in her sleep and

D.R. thought something was wrong. D.R. woke H.S. up and H.S.

said she was hungry. D.R. gave H.S. a little snack to eat. H.S.

stopped complaining after she had her snack.

14. In the afternoon on that day, D.R. too k the

two-year-olds outside again following the nap period for the

two-year-olds, but H.S. remained inside to allow the child to be

monitored in her demeanor. The child was kept inside "to just

keep an eye on her." H.S. was then taken to the nursery area and

examined for marks and bruises and her temperature was checked.

H.S. played with the children in the nursery after being left in

that area.

15. The child was checked a third time before being picked

up by her mother. This check was made around 2:30 p.m., by

Ms. Heather Lynn Prescott, an employee at Play Corner.

Ms. Prescott did not see any marks on H.S.

16. Around 4:30 p.m. in the afternoon when H.S.'s mother

picked the child up, D.R. told the mother about the child's fall.

17. As a result of the injuries H.S. sustained in the fall,

she had to be hospitalized.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties in this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

19. The Department has licensed Play Corner as a child care

facility. See Section 402.308, Florida Statutes.

20. Section 402.310, Florida Statutes, allows the

Department to impose discipline against a day care license to

include the imposition of an administrative fine for violation of

rules adopted in accordance with provisions within Chapter 402,

Florida Statutes. The limits upon the imposition of fines is

$100 per violation per day, unless the violation could or does

cause death or serious harm, in which case the fine may not

exceed $500 per violation per day. The appropriate disciplinary

action to be taken for a violation is pursuant to factors set

forth in Section 402.310, Florida Statutes.

21. To prevail in its disciplinary action the Department

must prove the alleged violations in the administrative complaint

by clear and convincing evidence.

22. Rule 65C-22.002(9)(b)1, Florida Administrative Code,

states:

A child care facility shall provide equipment

and play activity suitable to each child's

age and development.

The Department has provided no further explanation concerning the

determination of equipment suitable to a child's age and

development. It is a matter of conjecture on the part of the

Department and licensed day care facilities to determine

compliance. Ms. Dugger, as owner/operator for Play Corner, made

reasonable attempts at determining the suitability of the

playdeck in question for use by two-year-olds, among other age

groups. Until the incident there is no indication in the record

that H.S. or other two-year-olds had any difficulty in using the

equipment. H.S.'s accident does not per se prove the

unsuitability of the equipment for use by a child of her age and

development. In summary, the Department has not presented clear

and convincing evidence that Rule 65C-22.002(9)(b)1, Florida

Administrative Code, has been violated.

23. Rule 65C-22.002(4)(c)2, Florida Administrative Code,

states:

During outdoor play, personnel must situate

themselves in the outdoor play area so that

all children can be observed and direct

supervision provided.

The specific expectations of the rule concerning the ability to

observe all children and to directly supervise those children are

not further explained by the Department, by statute, rule, or

policy statement.

24. On the date the accident occurred D.R. was in a

position to observe and directly supervise the children in her

charge. It would not be a reasonable construction to read the

rule to require observation and direct supervision of every child

every instant. The expectation that the children can be observed

denotes an ability to observe. It does not entail constant

observation. The concept of providing direct supervision does

not call for supervision directed at all times. The time it took

D.R. to attend the discipline of one child by diverting her

attention from H.S. is not found to be a failure by D.R. to

observe and directly supervise H.S. in violation of the

expectations in the rule. In summary, the Department has failed

to present clear and convincing evidence that Play Corner

violated Rule 65C-22.002(4)(c)2, Florida Administrative Code.

25. Rule 65C-22.004(3)(d)2, Florida Administrative Code,

states:

Custodial parents or legal guardian shall be

notified immediately in the event of any

serious illness, accident, injury, or

emergency to their child and their specific

instructions regarding action be taken under

such circumstances shall be obtained and

followed. . . .

26. No more s pecific explanation is made by statute, rule,

or policy statement concerning the definition of a serious

accident or injury as that explanation would pertain to this

case. Nonetheless, H.S.'s reaction following her fall in which

she cried, was sleepy, was restless in her sleep, coupled with

the response by personnel at Play Corner in caring for the child

in a manner that was not routine demonstrates that the accident

was serious, even in the absence of outward signs of injury to

the child. Consequently, immediate notification should have been

made to the parents or legal guardians and was not made. Clear

and convincing evidence was provided that Play Corner violated

Rule 65C-22.004(3)(d)2, Florida Administrative Code.

27. The actual harm to H.S. was serious.

28. In accordance with Section 402.310(1), Florida

Statutes, a $250 administration fine is appropriate.

RECOMMENDATION

Upon consideration of the facts found and the conclusions

reached, it is

RECOMMENDED:

That a final order be entered which dismisses the alleged

violations of Rule 65C-22.002(9)(b)1, Florida Administrative

Code, and Rule 65C-22.002(4)(c)2, Florida Administrative Code,

and finds a violation of Rule 65C-22.004(3)(d)2, Florida

Administrative Code, and for such violation imposes a $250 fine

in accordance with Section 402.310(1), Florida Statutes.

DONE AND ENTERED this 10th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September , 1999.

COPIES FURNISHED:

Roger L. D. Williams, Esquire

Department of Children

and Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

Joseph B. Stokes, III, Esquire

Saalfield, Coulson, Shad

& Jay, P.A.

225 Water Street, Suite 1000

Jacksonville, Florida 32202-4458

Gregory D. Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, 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.