93-000849
Department Of Health And Rehabilitative Services vs.
Betty Gelzer, D/B/A Peabo Day Care Center
Status: Closed
Recommended Order on Thursday, April 22, 1993.
Recommended Order on Thursday, April 22, 1993.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH AND )
13REHABILITATIVE SERVICES, )
16)
17Petitioner, )
19)
20vs. ) CASE NO. 93-0849
25)
26BETTY GELZER, d/b/a PEABO )
31DAY CARE CENTER, )
35)
36Respondent. )
38___________________________________)
39RECOMMENDED ORDER
41Pursuant to notice, the Division of Administrative Hearings, by its duly
52designated Hearing Officer, Daniel Manry, held a formal hearing in the above-
64styled case on April 12, 1993, in Orlando, Florida.
73APPEARANCES
74For Petitioner: Laurie A. Lashomb, Esquire
80Department of Health and
84Rehabilitative Services
86400 West Robinson Street, Suite S-827
92Orlando, Florida 32801
95For Respondent: Betty Gelzer, pro se
101PEABO Day Care Center
105815 Hills Alley
108Orlando, Florida 32805
111STATEMENT OF THE ISSUE
115The issue for determination in this proceeding is whether Respondent
125violated Florida Administrative Code Rule 10M-12.002(5)(a)(2) by failing to
134directly supervise children in her care.
140PRELIMINARY STATEMENT
142Respondent requested a formal hearing on January 20, 1993. The matter was
154referred to the Division of Administrative Hearings on February 15, 1993, for
166assignment of a Hearing Officer and assigned to the undersigned on February 22,
1791993. A formal hearing was scheduled for April 13, 1993, pursuant to a Notice
193of Hearing issued on March 15, 1993. At the request of the undersigned, the
207parties agreed to conduct the formal hearing on April 12, 1993.
218At the formal hearing, Petitioner submitted the testimony of Ms. Linda
229Shaul, Licensing Representative for Petitioner. Petitioner submitted one
237exhibit for admission in evidence consisting of the Child Day Care Inspection
249Checklist. Petitioner's Exhibit 1 was admitted in evidence without objection.
259Ms. Betty Gelzer, Owner, testified on behalf of Respondent. Respondent
269submitted no exhibits for admission in evidence.
276A transcript of the formal hearing was not requested by either party.
288Petitioner timely filed proposed findings of fact and conclusions of law on
300April 19, 1993. Petitioner's proposed findings of fact are accepted in this
312Final Order.
314FINDINGS OF FACT
3171. On December 3, 1992, Ms. Linda Shaul, HRS Licensing Representative,
328conducted a routine inspection of PEABO Day Care Center, located at 815 Hills
341Alley, Orlando, Florida. Two infants were left in a bed in a back bedroom.
355Respondent had no staff watching and directing the infants' activities within
366close proximity in the same room.
372CONCLUSIONS OF LAW
3752. The Division of Administrative Hearings has jurisdiction over the
385parties and the subject matter of this proceeding. The parties were duly
397noticed for the formal hearing.
4023. Petitioner has the burden of proof in this proceeding. The burden of
415proof in an administrative proceeding is on the party asserting the affirmative
427of the issue unless the burden is otherwise specifically established by statute.
439Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990);
453Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla.
4651st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348
477So.2d 349 (Fla. 1st DCA 1977).
4834. Petitioner must show by a preponderance of evidence that Respondent
494failed to provide direct supervision of all children in its child care facility
507at all times within the meaning of Florida Administrative Code Rule 10M-
51912.002(5)(a)(2). Petitioner satisfied its burden of proof in this proceeding
529with competent and substantial evidence.
5345. "Direct Supervision" is defined in Florida Administrative Code Rule
54410M-12.002(5)(a) as "watching and directing children's activities within close
553proximity within the same room inside. . .". Respondent failed to provide the
567requisite "direct supervision" by leaving two infants in a bedroom unattended.
5786. Failure to provide direct supervision of the two infants constituted
589overt negligence related to the operation of PEABO Day Care Center and presented
602an imminent danger to the infants. Such an act or omission by Respondent is a
617Class I violation under Florida Administrative Code Rule 10M-12.011(7)(a)
626subject to the imposition of a fine of $100.00 per day.
637RECOMMENDATION
638Based on the foregoing findings of fact and conclusions of law, it is,
651RECOMMENDED that:
653Petitioner enter a Final Order finding Respondent guilty of the allegations
664in the Administrative Complaint and imposing a fine against Respondent in the
676amount of $100.00.
679DONE AND RECOMMENDED this 22nd day of April, 1993, in Tallahassee, Leon
691County, Florida.
693___________________________________
694DANIEL S. MANRY
697Hearing Officer
699Division of Administrative Hearings
703The DeSoto Building
7061230 Apalachee Parkway
709Tallahassee, Florida 32399-1550
712(904) 488-9675
714Filed with the Clerk of the
720Division of Administrative Hearings
724this 22nd day of April, 1993.
730COPIES FURNISHED:
732Laurie A. Lashomb, Esquire
736Department of Health and
740Rehabilitative Services
742400 West Robinson Street, Suite S-827
748Orlando, Florida 32801
751Betty Gelzer, Owner
754PEABO Day Care Center
758815 Hills Alley
761Orlando, Florida 32805
764Robert L. Powell, Agency Clerk
769Department of Health and
773Rehabilitative Services
7751323 Winewood Boulevard
778Tallahassee, Florida 32399-0700
781John Slye, General Counsel
785Department of Health and
789Rehabilitative Services
7911323 Winewood Boulevard
794Tallahassee, Florida 32399-0700
797NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
803All parties have the right to submit written exceptions to this Recommended
815Order. All agencies allow each party at least 10 days in which to submit
829written exceptions. Some agencies allow a larger period within which to submit
841written exceptions. You should contact the agency that will issue the final
853order in this case concerning agency rules on the deadline for filing exceptions
866to this Recommended Order. Any exceptions to this Recommended Order should be
878filed with the agency that will issue the final order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
- Date: 05/25/1993
- Proceedings: Final Order filed.
- Date: 04/19/1993
- Proceedings: Proposed Recommended Order filed. (From Laurie A. Lashomb)
- Date: 04/12/1993
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/15/1993
- Proceedings: Notice of Hearing sent out. (hearing set for 4-13-93; 1:00pm; Orlando)
- Date: 03/15/1993
- Proceedings: Notice of Transfer sent out. (proceedings has been transferred to Manry)
- Date: 03/08/1993
- Proceedings: Petitioner's Response to Initial Order filed.
- Date: 02/22/1993
- Proceedings: Initial Order issued.
- Date: 02/15/1993
- Proceedings: Notice; Request for Administrative Hearing; Administrative Complaint filed.