02-001664 Department Of Children And Family Services vs. Norwood Elementary After School Status: Closed Recommended Order on Tuesday, September 10, 2002.

Summary: Evidence was insufficient to establish that Respondent had imposed inappropriate discipline on a child.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1664

)

NORWOOD ELEMENTARY AFTER SCHOOL )

PROGRAM, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on June 28, 2002, by means of a video teleconference link

between Miami and Tallahassee, Florida. The hearing was held

before Adm inistrative Law Judge Michael M. Parrish of the

Division of Administrative Hearings.

APPEARANCES:

For Petitioner: Teresa Ragatz, Esquire

Isicoff, Ragatz & Koenigsberg, P.A.

1101 Brickell Avenue

South Tower, Suite 800

Miami, Florida 33131

For Respondent: Rosmarie Rinaldi, Esquire

Department of Children and Family Services

401 Northwest Second Avenue

Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

The issue in this case concerns whether the Respondent, 1

Norwood Elementary After School Program, should be fined $200.00

for violation of licensing standards appli cable to childcare

facilities as alleged in the Charging Document dated

December 20, 2001.

PRELIMINARY STATEMENT

By letter dated December 20, 2001, the Petitioner,

Department of Children and Family Services, notified the YWCA of

Greater Miami, the operat or of the Norwood Elementary After

School Program, of its intention to impose a civil penalty in

the amount of $200.00 for alleged violation of the minimum

standards, rules, and regulations for the operation of a child

care facility. The Respondent, Norwo od Elementary After School

Program, timely requested a hearing pursuant to Sections 120.569

and 120.57, Florida Statutes, on the Department’s proposed

action. On April 25, 2002, the matter was referred to the

Division of Administrative Hearings for the as signment of an

administrative law judge to conduct the hearing.

The hearing was held on June 28, 2002. The Petitioner

presented the testimony of Linda Reiling, a licensing counselor

employed by the Petitioner, and the Petitioner also offered two

exhibits , both of which were received in evidence. The

Respondent presented the testimony of Eileen Maloney - Simon,

Executive Director of the YWCA of Greater Miami, Patricia

Williams, Director of the YWCA’s after school programs and

Rosalind Dunwoody, on - site Dire ctor of the Norwood Elementary

After School Program. The Respondent also offered two exhibits,

both of which were received in evidence.

The transcript of the final hearing was filed on August 8,

2002. At the hearing, the parties agreed that proposed

re commended orders would be submitted within twenty - one days of

the filing of the transcript. Proposed recommended orders were

timely submitted by both parties. Those documents have been

carefully considered during the preparation of this Recommended

Order . 2

FINDINGS OF FACT

1. Norwood Elementary School is a public elementary school

located in Miami - Dade County, Florida. The Norwood Elementary

After School Program is a childcare facility licensed by the

Petitioner.

2. The Norwood Elementary After Scho ol Program is operated

by the YWCA of Greater Miami. The YWCA of Greater Miami has a

long history in child care in the Miami - Dade County community.

The YWCA of Greater Miami operates seven early childhood

centers, three of which are nationally accredited , and 18 after

school sites, caring for over 2,500 children every day.

3. The Norwood Elementary After School Program is a center

for children with special needs. The Norwood Elementary After

School Program provides services to children who have various

disabilities, including children who are profoundly handicapped,

trainable handicapped, and severely mentally retarded. Eighty

percent of the staff of the Norwood Elementary After School

Program is employed by Miami - Dade County Public Schools and are

ind ividuals who work with the special needs children during the

day as well as after school. These are individuals who are

specially trained to work with special needs children. These

staff members know the children as well as their parents, and

the childre n know them. Rosalind Dunwoody, the on - site director

of the Norwood Elementary After School Program is an employee of

Dade County Public Schools. She works as a paraprofessional at

Norwood Elementary during the school day and for the Norwood

Elementary A fter School Program in the afternoons.

4. D.D. is a four - year - old boy who is in the special needs

program at Norwood Elementary during the day and also is in the

Norwood Elementary After School Program. D.D. is in the

profoundly retarded classroom at No rwood Elementary and his

behavior is impulsive. For his own safety, when he is being fed

or when he is sitting to play or color or do some other task,

D.D. is secured in his chair by a seat belt. It is a regular

wooden child’s chair with a seatbelt, simi lar to the seatbelts

used on airplanes, that fastens around the child’s hips, waist,

or lower abdomen. Neither the child’s arms nor legs are

restrained. D.D. uses a similar chair during the daytime

program at Norwood Elementary and he is able to buckle a nd

unbuckle the seatbelt himself, usually buckling himself in when

he sits in the chair to be fed. Such chairs are utilized for

similarly disabled children when they are sitting to eat or to

perform some task. The purpose of the chair is to ensure the

sa fety of the child. D.D.’s parents have provided Norwood with

written permission to buckle D.D. into the chair for his safety.

D.D. never has been buckled in his chair for disciplinary

purposes or for the purpose of protecting other children in the

progra m.

5. On April 25, 2001, Ms. Reiling, the Petitioner's

licensing counselor responsible for the Norwood Elementary After

School Program, received a complaint from the mother of another

special needs child to the effect that her daughter had been

bitten at the Norwood After School Program by D.D. On April 26,

2001, the day after she received the complaint, Ms. Reiling

visited the site and she observed D.D. in his chair with the

seatbelt buckled. Ms. Reiling suggested to Ms. Dunwoody, the

Director of Norwo od, that ambulatory children should be

separated from non - ambulatory children and that D.D. should not

be strapped to a chair. That same day, Ms. Reiling prepared an

inspection report in which she noted: “Children must not be

strapped to chair for discipl ine.” The report prepared by

Ms. Reiling also noted that, in response to Ms. Reiling’s

suggestions, Ms. Dunwoody explained that the chair was not being

used for disciplinary purposes. Ms. Reiling’s report states:

“Ms. Dunwoody states child not put in ch air for discipline.”

6. Subsequent to her April 26, 2001 inspection,

Ms. Reiling returned to Norwood on May 16, 2001, and on May 30,

2001. On both of these visits, Ms. Reiling noted that, while

the ambulatory children were separated from the non - ambulat ory

children as she had suggested, D.D. was buckled in his chair.

When she again mentioned that she did not believe it was good

practice to buckle D.D. into his chair, the staff explained that

D.D. was buckled in his chair because they were about to feed

him.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Sections 120.569 and 120,57(1), Florida Statutes.

8. Sections 402.301 - 402.319, Florida Statutes, establi sh

statewide minimum standards for the protection of children in

child care facilities, the legislative intent being “to protect

the health, safety and well - being of the children of the

state. . . .” Section 402.301. In addition, Section

402.301(7), Fl orida Statutes, provides that it is “the policy of

the state to encourage child care providers to serve children

with disabilities.” Norwood Elementary After School Program, a

child care facility that serves children with disabilities, is

licensed by the Department. Norwood After School Program has a

responsibility to take the reasonable steps necessary to ensure

the health and safety of the children it serves.

9. Section 402.310(1)(a), Florida Statutes, pursuant to

which the Department seeks to impose a fine in this case,

provides that the Department may impose “an administrative fine

not to exceed $100 per day, for the violation of any provision

of ss. 402.301 - 402.319.” In this case, the Department contends

that Norwood violated Section 402.305(12)1., Florida Statutes,

which states that “[c]hildren shall not be subjected to

discipline which is severe, humiliating, or frightening.” The

Department contends that the buckling of D.D. into his chair

constituted discipline and that such discipline was sever e,

humiliating, and/or frightening.

10. In seeking to impose an administrative fine upon a

child care facility for violating licensing standards, the

Department has the burden of establishing the accused child care

facility’s guilt of the alleged violati on. Proof greater than a

mere preponderance of the evidence must be presented. Clear and

convincing evidence is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996)

(“[A]n administrative fine deprives the person fined of

substantial rights in property. Administrative fines . . . are

generally punitive in nature . . . Because the imposition of

administrative fines . . . are penal in nature and implic ate

significant property rights, the extension of the clear and

convincing evidence standard to justify the imposition of such a

fine is warranted”); Section 120.57(1)(j), Florida Statutes

(“Findings of fact shall be based upon a preponderance of the

evid ence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute”). “[C]lear and

convincing evidence requires that the evidence must be found to

be credible; the facts to which the witnesses testify must be

distinctl y remembered; the testimony must be precise and

explicit and the witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of such weight that it

produces in the mind of the trier of fact a firm belief or

conviction, without he sitancy, as to the truth of the

allegations sought to be established.” In re Davey , 645 So. 2d

398, 404 (Fla. 1994) (quoting with approval, Slomowitz v.

Walker , 429 So. 2d 797. 800 (Fla. 4th DCA 1983).

11. The Department has not met its burden of provin g, by

clear and convincing evidence, that the Norwood Elementary After

School Program subjected D.D. to discipline, in the first

instance, and certainly has not met its burden of proving that

the Norwood Elementary After School Program subjected D.D. to

di scipline that was severe, humiliating, or frightening.

Rather, the greater weight of the evidence is to the effect that

the buckling of D.D. into his chair was never done for any

disciplinary purpose, but was solely for D.D.’s own safety -- a

safety measu re that was taken with the written permission of

D.D.’s parents. A violation of Section 402.305(12)1., Florida

Statutes, has not been established.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department issue a final

order dismissing the charges against the Respondent.

DONE AND ENTERED this 10th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

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) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September, 2002.

ENDNOTES

1/ The Department of Children and Family Services initiated

this proceeding by n otifying the YWCA of Greater Miami that it

intended to impose a fine on the Norwood Elementary After School

Program. Under these circumstances, the Department bears the

burden of proof and should be designated as the Petitioner. The

style of this matter has been corrected to reflect the correct

status of the parties. Throughout this Recommended Order, the

Department of Children and Family Services is sometimes referred

to as "the Petitioner" or "the Department," and the Norwood

Elementary After School Pr ogram is sometimes referred to as "the

Respondent."

2/ The proposed recommended order submitted by the Respondent

is, for the most part, consistent with the findings and

conclusions reached by the administrative law judge.

Substantial portions of the Re spondent's proposed recommended

order have been incorporated into this Recommended Order.

COPIES FURNISHED:

Teresa Ragatz, Esquire

Isicoff, Ragatz & Koenigsberg, P.A.

1101 Brickell Avenue

South Tower, Suite 800

Miami, Florida 33131

Rosemarie Rina ldi, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N - 1014

Miami, Florida 33128

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

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

Jerry Regier, Secretary

Department of Children and

Family Servic es

1317 Winewood Boulevard

Building 1, Room 202

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.