01-002246 Department Of Children And Family Services vs. Central Avenue Child Care Status: Closed Recommended Order on Wednesday, August 29, 2001.

Summary: Failure to supervise children in day care facility warrants fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 01-2246

)

CENTRAL AVENUE CHILD CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 26, 2001, a formal administrative hearing in this

case was held by videoconference in Tallahassee and Orlando,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petiti oner : Craig A. McCarthy, Esquire

Department of Children

and Family Services

400 West Robinson Street, Suite 1106

Orlando, Florida 32801

For Respondent : No Appearance

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the

Administrative Complaint filed by the Petitioner against the

Respondent are correct and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed on May 3, 2001, the

Department of Children and Family Services (Petitioner) alleged

that Central Avenue Child Care (Respondent) had violated various

provisions of Florida Statutes and the Florida Administrative

Code. Carol Wiggins, the owner of the child care facility,

requested a hearing to address the allegations. The Petitioner

forwarded the request to the Division of Administrative

Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits numbered 1-4 admitted into

evidence. The Respondent did not attend the hearing and

presented no testimony or exhibits.

No transcript of the hearing was filed. The Petitioner

filed a Proposed Recommended Order that was considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency responsible for

licensure and regulation of child care facilities operating in

the State of Florida.

2. The Respondent is a licensed child care facility,

Florida license number 400-9, located at 1221 South Washington

Avenue in Apopka, Florida.

3. On March 1, 2001, the Petitioner received a complaint

related to alleged poor conditions at the Respondent facility,

including unclean bathrooms, and unsupervised children.

4. An investigator employed by the Petitioner was assigned

to inspect the facility. He visited the child care center on

the afternoon of March 1, 2001, and recorded his observations on

an "inspection checklist."

5. On March 1, 2001, the facility was observed to be

"dirty and cluttered." One of the restrooms was unclean and

apparently not functional.

6. Additionally, three infants were left alone in a room

without adult supervision. The closest adult to the infant room

was conducting business with a customer and was not within sight

of the children.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

8. The Petitioner has the burden of establishing by a

preponderance of the evidence, entitlement to the relief sought.

Florida Department of Transportation v. JWC Company, Inc. , 396

So. 2d 778 (Fla. 1st DCA 1981) , Balino v. Department of Health

and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

In this case, the burden has been met.

9. Rule 65C-22.001(5), Florida Administrative Code, sets

forth the requirements for supervision of children at licensed

child care facilities and provides as follows:

(5 ) Supervision

(a ) Direct supervision means watching and

directing children's activities within the

same playroom or designated outdoor play

area and responding to each child's need.

Child 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. . . .

(b ) During nap time, supervision means

sufficient staff in close proximity, within

sight and hearing of all the children. . . .

10. The evidence establishes that the Respondent failed to

comply with the requirements set forth at Rule 65C-22.001(5),

Florida Administrative Code.

11. Section 402.310(1)(a), Florida Statutes, provides as

follows:

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. 4-2.301-402.319 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.

12. In this case, the Petitioner seeks to impose a fine of

$100 for the failure to supervise the infants. The agency is

not seeking to impose a penalty against the Respondent for the

non-functioning restroom. There is no evidence that the

Petitioner's proposed penalty is inappropriate.

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 imposing a fine of one hundred

dollars ($100) against the Respondent.

DONE AND ENTERED this 29th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 29th day of August, 2001.

COPIES FURNISHED :

Craig A. McCarthy, Esquire

Department of Children and Family Services

400 West Robinson Street, Suite 1106

Orlando, Florida 32801

Carol Wiggins

Central Avenue Child Care

1221 South Washington Avenue

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 204

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.