00-005138 Department Of Children And Family Services vs. Cool School, Inc. Status: Closed Recommended Order on Friday, March 23, 2001.

Summary: Agency established that day care failed to properly supervise children on two occasions; $100 fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 00-5138

)

COOL SCHOOL, INC. , )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on March 6, 2001, in Jacksonville, Florida, before Donald

R. Alexander, the assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petition er : Robin Whipple-Hunter, Esquire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

For Respondent : Antoinette Garrity, pro se

Cool School, Inc.

57 College Drive

Orange Park, Florida 32065

STATEMENT OF THE ISSUE

The issue is whether Respondent should be assessed a

$150.00 civil penalty for violating Rule 65C-22.001, Florida

Administrative Code, in three respects.

PRELIMINARY STATEMENT

This matter began on November 13, 2000, when Petitioner,

Department of Children and Family Services, advised

Respondent, Cool School, Inc., a licensed child care facility,

that it intended to impose a $150.00 civil penalty for three

rule violations which allegedly occurred at the facility in

September 2000.

Respondent disputed these allegations and requested a

hearing under Section 120.569, Florida Statutes (2000), to

contest the proposed action. The matter was referred by

Petitioner to the Division of Administrative Hearings on

December 28, 2000, with a request that an Administrative Law

Judge be assigned to conduct a hearing. By Notice of Hearing

dated January 12, 2001, a final hearing was scheduled on March

6, 2001, in Jacksonville, Florida. On March 5, 2001, the case

was transferred from Administrative Law Judge Don W. Davis to

the undersigned.

At the final hearing, Petitioner presented the testimony

of Susan Kipen, a family services counselor. Also, it offered

Petitioner's Composite Exhibit 1, which was received in

evidence. Respondent was represented by its owner, Antoinette

Garrity , who testified on her own behalf and presented the

testimony of Sharon Dunn and Regina Harewood , two employees.

Finally, the undersigned took official recognition of Rules

65C-22.001(5)(a) and (6)(d), Florida Administrative Code,

Section 402.310, Florida Statutes (2000), and the Final and

Recommended Orders in DOAH Case No. 00-1421.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Respondent and

Petitioner on March 15 and 16, 2001, respectively, and they

have been considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. In this case, Petitioner, Department of Children and

Family Services ( DCFS), has filed an Administrative Complaint

against Respondent, Cool School, Inc., a licensed child care

facility, seeking to impose a $150.00 civil penalty on

Respondent for allegedly violating an agency rule in three

respects. Respondent, which operates a facility at 57 College

Drive, Orange Park, Florida, disputes the allegations and

contends that the charges are either not true, or there are

extenuating circumstances present which require dismissal of

the charges or a reduction in the penalty.

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

underpins this action and requires in relevant part that

"[c ] hild care personnel at the facility must be assigned to

provide direct supervision to a specific group of children and

be present with that group of children at all times." The

Administrative Complaint alleges that in September 2000

Respondent violated this rule by (a) allowing a two-year-old

child to exit the facility to the playground, without

supervision, clad only in a shirt and shoes; (b) allowing two

children under the age of thirteen to change the diaper of a

seven-month-old infant in the bathroom, without supervision by

the staff; and (c) allowing at least five school-aged children

to leave the premises and get items from their book bags on

the front porch, without supervision. The DCFS proposes to

impose a $50.00 civil penalty for each violation, or a total

of $150.00.

3. DCFS has the responsibility of periodically

inspecting licensed child care facilities to ensure that they

are complying with agency rules and state law. To carry out

this duty, DCFS typically assigns its licensing counselors a

number of facilities to monitor. In this case, Susan Kipen, a

licensing counselor stationed in Jacksonville, was assigned

the task of monitoring more than 90 such facilities in the

Jacksonville area, including Respondent.

4. In response to a complaint filed by an unnamed parent

on September 18, 2000, Kipen inspected Respondent's facility

on the afternoon of September 20, 2000. The parent had

reported that her two-year old child had wandered into the

playground area without supervision, and that the diapers on

her seven-month-old child had been changed by two school age

children without appropriate supervision.

5. During her visit, Kipen prepared a document entitled

Complaint Investigation in which she recited the alleged

violations for which Respondent was being charged. They

included, among other things, the two complaints previously

lodged by the parent, namely, that a "two year old did get

outside by himself, he only had shirt and shoes," and that a

"7 month [old] was changed by two schoolers."

6. Although the licensing counselor did not actually

observe the two incidents reported by the parent, she included

them in her report because she says Respondent's owner,

Antoinette Garrity, "confirmed" that they were true by reading

and signing the report. However, Garrity understood that her

signature merely confirmed that she had read the reported

charges, not that she agreed with them. The only first-hand

evidence on these two charges was that presented by

Respondent. The complaining parent did not testify.

7. In addition to the above two charges, the counselor

also charged Respondent with allowing "at least five (5)

school-aged children, one at a time, and unsupervised, [to

leave] the center by the front door to get items from their

book bags located on the front porch." This charge was based

on a personal observation by the licensing counselor during

her inspection.

8. The first violation concerns a charge that a two-

year-old left the facility unattended and was "discovered a

few minutes later on the playground by the assistant

director." On this issue, the evidence shows that the child

was using the potty in the presence of a facility worker,

Sharon Dunn, who was also changing a baby's diapers at the

same time. The two-year-old suddenly jumped off the potty

(without his pants), ran to the door, opened it, and went

outside on the porch. Dunn, who had the child in her view at

all times from the bathroom window, asked the facility's

assistant director, Regina Harewood, who was nearby, "Can you

get him?" Harewood acknowledged that she could and proceeded

to grab the child and bring him back into into the classroom.

The child was never in any danger since he was being observed

at all times and was retrieved a few moments after he ran out

the door. In addition, Harewood was close enough to be

capable of responding to an emergency at all times. Under

these circumstances, it is found that no violation of the rule

occurred.

9. The second charge concerns an allegation that "two

(2) children under the age of 13 years changed the diaper of a

7-month-old infant in the bathroom and no staff was present to

supervise [them]." The evidence shows that a new worker had a

baby in the bathroom for the purpose of changing his diapers.

Garrity acknowledged that when the worker left the room to go

outside for a moment, the worker improperly allowed two

schoolers who were in the same room to change the diapers.

While the diapers were being changed, the baby's mother came

into the room. She then complained to staff personnel and

later filed a complaint with DCFS. Garrity admonished both

the worker and children that this situation should never occur

again. Although there was no evidence on how this set of

events actually or potentially jeopardized the baby's safety

or well-being, a technical violation of the rule has been

established since there were no supervisory personnel in the

bathroom for a few moments.

10. Finally, during her inspection, the counselor

observed at least five children, one at a time, walk outside

the front door to retrieve items from their book bags, which

were lying on the front porch of the facility, and then return

inside. At that time, it was the practice of the children to

leave their book bags on the front porch when they arrived at

the facility each day. This evidence was not contradicted.

11. Because the front porch was no more than 25 or 30

feet from the sidewalk, which was used by the general public,

and there was an apartment complex nearby, the children had

the opportunity to gain access to areas frequented by the

public. This is true even though the assistant director says

that while she was on duty, she was by the front door "the

majority of the time." Therefore, the children were

potentially at risk when they briefly left the premises to

retrieve items from their book bags.

12. Respondent's owner admitted that she "hadn't thought

of this situation," and after the incident occurred, she

instructed the children that all book bags must be brought

into the dayroom. Notwithstanding this corrective action, a

violation of the rule has been established.

13. In mitigation, Respondent's owner suggested that the

entire matter was caused by a vindictive parent who owed her

facility money and filed the charges after a heated

confrontation. She also worries that each time the facility

receives a civil penalty , it "kills" her business. Finally,

she described her facility as a "pretty good" day care

facility, and insisted that she puts safety first for the

children.

14. Respondent has been the subject of one other

disciplinary action in which she was found guilty of failing

to submit background screening documents within ten days of

employment of seven staff members. In that matter, which was

concluded after the Administrative Complaint in this case was

issued, she was given a $350.00 civil penalty. See Cool

School, Inc. v. Dep't of Children and Family Services , DOAH

Case No. 00-1421 (Final Order, Feb. 28, 2001).

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.57 and 120.569, Florida Statutes

(2000).

16. As the party seeking to impose a civil penalty,

Petitioner bears the burden of proving the allegations in the

Administrative Complaint by clear and convincing evidence.

17. Section 402.310(1), Florida Statutes (2000), governs

this proceeding and authorizes the Department to "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." The same statute goes on to

provide that in determining the appropriate disciplinary

action to be taken for a violation, that the Department

consider "[t ]he severity of the violation," "[a] ctions taken

by the licensee to correct the violation or to remedy

complaints," and "[a] ny previous violations of the licensee."

18. The Administrative Complaint alleges that Respondent

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

in three respects. That rule reads as follows:

(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 direct supervision to a

specific group of children and be present

with that group of children at all times.

When caring for school age children, child

care personnel shall remain responsible for

the supervision of the children in care and

capable of responding to emergencies, and

are accountable for children at all times,

which includes when children are separated

from their groups.

19. By clear and convincing evidence, Petitioner has

established that Respondent violated the foregoing rule by

allowing two children under the age of thirteen to change a

baby's diapers in a bathroom, without supervision, and by

allowing five children to walk onto the porch of the facility

without direct supervision. The remaining violation has not

been established and should be dismissed. The civil penalty

suggested in the Administrative Complaint, $50.00 per

violation, or a total of $100.00, is found to be appropriate

for these violations.

RECOMMENDATION

Based on 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, in two

respects, and that it have a $100.00 civil penalty imposed.

The remaining charge should be dismissed.

DONE AND ENTERED this 23rd day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

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

Divisi on of Administrative Hearings

this 23rd day of March, 2001.

COPIES FURNISHED:

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Antoinette Garrity

Cool School, Inc.

57 College Drive

Orange Park, Florida 32065

Robin Whipple-Hunter, Esquire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231-0083

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days to this Recommended Order. Any exceptions to this

Recommended Order should be filed with the agency that will

enter a final order in this case.