02-000834 Gwendolyn Gobler, D/B/A Discovery Learning Center vs. Department Of Children And Family Services Status: Closed Recommended Order on Thursday, October 3, 2002.

Summary: Recommended Petitioner`s child care license be revoked. Children escaped from home near busy highway and significant past violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GWENDOLYN GOBLER, d/b/a )

DISCOVERY LEARNING CENTER, )

)

Petitioner, )

)

vs. ) Case N o. 02 - 0834

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative

proceeding and hearing before P. Michael Ruff, duly - designated

Administrative Law Judge of the Division of Administrative

Hearings on July 17, 2002, in St. Augusti ne, Florida. The

appearances were as follows:

APPEARANCES

For Petitioner: Gwendolyn Gobler, pro se

Post Office Box 1122

Ponte Vedra, Florida 32004

For Respondent: Roger L. D. Williams, Esquire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231 - 0083

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether violations of Sections 402.305 and .310, Florida

Statutes, and Section 65C - 22.001, F lorida Administrative Code,

have been committed with regard to the care of children at the

Petitioner's facility, such that its license should be revoked

or other penalty imposed.

PRELIMINARY STATEMENT

This cause arose when the Department of Children an d Family

Services, by letter dated January 22, 2002, advised the

Petitioner that it was revoking the Petitioner's license to

operate a daycare facility. The proposed revocation involved

certain violations of the agency's regulatory authority

referenced be low involving child safety. The Petitioner elected

to contest that initial agency decision and a proceeding before

the Division of Administrative Hearings and the undersigned

Administrative Law Judge ensued.

The cause came on for hearing as noticed. The Petitioner

presented her own testimony and offered two exhibits which were

admitted into evidence. The Respondent called three witnesses

to testify and offered four exhibits which were admitted into

evidence.

Upon concluding the proceeding, a Transcri pt thereof was

obtained and the parties chose to file Proposed Recommended

Orders. Those Proposed Recommended Orders have been considered

in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner Gwendolyn Gobler was licensed to ope rate

a daycare facility called Discovery Christian Learning Center,

by the Department of Children and Family Services (Department)

from August 13, 2001 through August 12, 2002. The Petitioner

has a Bachelor's degree in early childhood education and has ha d

a license for a family daycare home or center since sometime in

1998. Discovery Christian Learning Center, the subject

facility, is located in St. Augustine, Florida at Number 260,

State Road 16. State Road 16 is a busy four - lane highway in

St. August ine connecting Interstate 95 to downtown St.

Augustine.

2. On the day in question, January 17, 2002, an insurance

agent Bill Matetzsck and his passenger, Ms. Lee Stec, were

traveling on Highway 16 in the outer - left lane when they

observed two children pla ying near the street on the outside of

the Petitioner's facility. The children, a boy almost aged two

and a girl aged two and one - half were playing on the sidewalk

throwing leaves in the gutter. The little boy was observed to

step into the highway while chasing leaves. Mr. Matetzsck

stopped his car after observing the children and Ms. Stec

retrieved them before they could be hit by a car and took them

back into the facility. Ms. Stec became somewhat upset about

the discovery of the children outside of t he facility and

immediately called the police, local television stations, the

Florida Times Union Newspaper and waited for the police to

arrive.

3. Mr. Matetzsck observed that the double gate on the side

of the property in the area of the backyard had a chain wrapped

around it, but there was no lock on the chain. The Petitioner

acknowledged to the law enforcement officer who investigated the

incident that, although chained, the gate had not been properly

fastened or secured.

4. During that same time period Ms. Stec had also made a

call to the Department of Children and Family Services reporting

the incident. This triggered an inspection and investigation by

the Department.

5. Carmen Baselice is a Family Services Counselor assigned

to St. John's Coun ty. The territory of her regulation and

inspection of child care facilities includes the Discovery

Christian Learning Center operated by the Petitioner.

Ms. Baselice's duties include regulating and inspecting child

care facilities and family daycare hom es.

6. Ms. Baselice initiated her investigation into the

complaint by visiting the Discovery Christian Learning Center

and discussing the complaint with Ms. Gobler. Ms. Gobler had

noticed that the children were missing from her playground in

the backya rd and had just gone inside to see if they had gone

back in the house at the time the children were being brought

inside from the front of the house by Ms. Stec.

7. Ms. Baselice observed that the front door of the

facility was not properly fastened due to tape being placed

around the doorknob locking mechanism. The door could only be

locked by use of a deadbolt. Ms. Baselice felt at the time that

the children may have exited the facility by that door.

Ms. Gobler, however, stated that the only possibl e way that the

children could have gotten out was by the gate which she

acknowledged was not properly fastened.

8. On January 17, 2002, Ms. Baselice received another

complaint from a parent who was concerned that it was her child

who had gotten out of t he facility. The parent was concerned

because her own child had gotten out of the facility by the

front door in December 2001. Ms. Baselice reviewed the

complaint with Ms. Gobler who confirmed that the child had

gotten out of the facility by way of the f ront door by turning

the deadbolt, but that she had apprehended the child while the

child was still on the front porch and returned her to safety

inside the house.

9. On January 8, 2002, before the incident with the two

children, Ms. Baselice conducted an annual renewal inspection on

the facility. She observed an infant in a crib unattended and

the facility "out - of - ratio" for more than thirty minutes. Out

of ratio means that there was an insufficient number of staff

members for the number of children b eing kept at the facility.

On this occasion there were four children being kept, as well as

the infant asleep in the crib in the infant room. Ms. Gobler

was the only person present at the time of this inspection, on

January 8, 2002. Thirty minutes later the second worker came on

duty. The thirty - minute delay in being properly staffed was

caused by that worker having a flat tire on her way to work.

Ms. Gobler was attending to the toddlers in the larger room and

the infant was asleep in the crib in the a djoining infant room,

a separate room. However, it is also true that Ms. Gobler had

the infant in plain sight from her station in the room with the

four other children and could hear the infant through the open

or sliding door.

10. Through her testimon y, and through Respondent's

Exhibit two, in evidence, Ms. Baselice established that Ms.

Gobler had a long history of incidents investigated and

inspected by the Department and a substantial number of

attendant violations. The incidents reported in Respond ent's

Exhibit two and in Ms. Baselice's testimony began prior to 1998

and there was a history of non - compliance which continued to the

present time. During these years Ms. Gobler operated in

disregard of the law in a number of instances, either by non -

com pliance with specific regulatory requirements concerning how

her child care facility operated or was equipped, or without

licensure in all instances. When the violations were cited she

would often correct the immediate problem but later repeat the

same ty pe of violation.

11. Many of the violations in her regulatory history are

germane to child safety. The subject violations involving the

children escaping form the home obviously are directly and

dramatically involved with child safety. The little boy in

question was about to get into the street and was barely missed

by an oncoming car when Ms. Stec retrieved him. Those

repetitive violations in the past are referenced in Respondent's

Exhibit two and are incorporated herein by reference.

CONCLUSIONS O F LAW

12. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

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

(2001).

13. The Petitioner is attempting to have her license

reinstated as a licensed child care facility pursuant to Section

402.305, Florida Statutes.

14. Section 402.305, Florida Statutes, concerning staffing

to children ratio states as follows:

(a) minimum standards for the care of

children in a licensed care facility as

est ablished by the department must include

at least the following requirements.

(1) For children from birth through 1 year

of age there must be one child care

personnel for every four children.

(2) For children 1 year or older, but under

2 years of age th ere must be one child care

person for every six children.

15. Section 402.310, Florida Statutes, concerning

disciplinary actions provides pertinently as follows:

. . .(1)(a) The Department or local

licensing agency may deny, suspend, or

revoke a licens e, impose an administrative

fine not to exceed $100.00 per violation,

per day for violation of any provision of

Subsections 402.301 - 319, or rules adopted

hereunder.

(b) in determining the appropriate

disciplinary action to be taken for a

violation as pro vided in paragraph (a)

the following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resulted, the

severity of the actual or potential harm and

the extent to which the provisions of

Subsections 402.301 - 402.319 have been

violated.

2. Actions taken by the licensee to

correct the violation or remedy complaints.

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

provi des:

The staff to children ratio as established

by 402.305(4) is based on primary

responsibility for direct supervision of

children and applies at all times while

children are in care.

(b) Mixed Age Groups.

1. In groups of mixed age ranges,

where children under 1 year are included,

one staff member shall be responsible for no

more than 4 children of any age group.

(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 needs.

Childcare 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.

17. Preponderant evidence of recor d has established that

Ms. Gobler had two children leave her facility while it was

under her supervision and care and that she failed to always

have the appropriate staff on site to monitor and supervise

children. It was also established that she had anot her child

leave her facility unobserved for a few minutes in December

2001.

18. It has thus been proven by preponderant evidence that

Ms. Gobler failed to adequately supervise the two minor children

on January 17, 2002, in violation of the statute. She failed to

watch and direct their activities while they were in her

supervision in the outside play area. Ms. Gobler failed to

maintain the appropriate staff ratio in the facility on

January 8, 2002, although it is understood that that was an

accidental situation or circumstance whereby the co - worker was

delayed reporting for work for one - half hour due to car trouble.

Ms. Gobler attended to the four toddlers in the larger area of

the facility on that occasion while a child was asleep in the

infant room. The statute specifically states that in mixed aged

groups that one staff member shall be responsible for no more

than four children of any age group.

19. Additionally, the Department has established that in

December 2001, a child escaped from the faci lity by the front

door. Ms. Gobler was able to apprehend the child on that

occasion before it left the front porch of her home.

20. In considering a sanction to be imposed for the

established violations one must consider the severity of the

harm that c ould have resulted by the children leaving the

facility. Discovery Christian Learning Center is located on

Highway 16, a very busy highway connecting St. Augustine's

downtown area to Interstate 95. The two children, one two years

of age, and the other a few days from age two, were not of an

age to have matured so as to exercise proper care and

discretion. They got out of the facility unattended and were

playing with leaves on the sidewalk right next to the highway.

One of the children even stepped into the highway while

chasing leaves. Without the intervention of Ms. Lee Stec and

Mr. Matetzsk, there is a high likelihood that one or both of the

children could have been struck by a car. The fact that a

similar, although less severe incident occurred in December

should have put Ms. Gobler on notice that she needed to be more

aware of the safety needs of the children who families have put

in her trust. This factor, coupled with Ms. Gobler's failure to

follow the appropriate rules for the child supervision ratio,

her fairly numerous instances of violations concerning proper

equipping, operation and safety requirements for her facility,

as well as her prior history, on a number of occasions, of

operating an unlicensed facility, indicate that a substantial

pe nalty is warranted.

21. The preponderant evidence has thus established that,

because of the severity of these incidents and her past record

of either disregarding or not taking seriously the statutes and

rules governing operation of her facility, especi ally with

regard to deficiencies that relate to child safety, it has been

shown that Ms. Gobler is not an appropriate person to be

licensed. Over a period of several years, she has not

demonstrated the ability to maintain a safe environment for the

childr en in her care. Consequently, revocation is appropriate.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Children and Family Services revoking the Petitioner's

license.

DONE AND ENTERED this 3rd day of October, 2002, in

Tallahassee, Leon County, Florida.

________________________ ___________

P. MICHAEL RUFF

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 (850) 92 1 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2002.

COPIES FURNISHED :

Gwen Gobler, pro se

Post Office Box 1122

Ponte Vedra, Florida 32004

Roger L. D. Williams, Es quire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231 - 0083

Paul F. Flounlacker, Jr., 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

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions 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.