03-003152 Department Of Children And Family Services vs. 03004240 Status: Closed Recommended Order on Wednesday, February 9, 2005.

Summary: Petitioner established by clear and convincing evidence that Respondent`s many, repeated violations merited suspension, then non-renewal, of the facility`s license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3152

)

S & S ACHIEVERS LEARNING )

CENTER, )

)

Respondent. )

)

S & S ACHIEVERS LEARNING )

CENTER, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4240

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for for mal

proceeding and hearing before Lawrence P. Stevenson, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, on January 29, 2004, via teleconference

from locations in Orlando and Tallahassee, Florida; on

February 27, 2004 , in Orlando, Florida; and on March 5, 2004,

via teleconference from locations in Orlando and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Larry H. Colleton, Esquire

2300 East Concord Street

Orlando, Florida 32803

For Respondent: Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801 - 1782

STATEMENT OF THE ISSUES

At issue in DOAH Case No. 03 - 3152 is whether the Department

of C hildren and Family Services ("Department") established

sufficient grounds for suspending the provisional child care

license of S & S Achievers Learning Center ("S & S Achievers")

for 30 days due to noncompliance with minimum licensing

standards.

At issue i n DOAH Case No. 03 - 4240 is whether S & S

Achievers' license to operate a child care facility should be

renewed.

PRELIMINARY STATEMENT

By letter dated June 25, 2003, the Department informed

S & S Achievers that its provisional license to operate a child

c are facility was being suspended for a period of 30 days. As

grounds for the suspension, the Department's letter cited the

following alleged violations of the minimum child care standards

found in Section 402.305, Florida Statutes (2003), and Florida

Admi nistrative Code Chapter 65C - 22:

(1) Since your initial licensure in

April 2001, three of nine inspections reveal

violations of staff - to - child ratios and/or

direct supervision of children.

(2) In four of nine inspections, the

facility has been cited for vi olations of

children's records, either being incomplete

or unavailable for review.

(3) Your facility has been cited in six of

nine inspections for deficiencies in

personnel files, either in background

screening requirements or having staff

trained in requ ired childcare courses.

(4) Your facility had been cited twice for

not having documented fire drills or staff

certified in First Aid and CPR.

(5) Your facility has been cited twice for

exceeding the licensed capacity.

(6) A consumer complaint received J une 5,

2003, involving a special needs child

reveals ongoing violations of staff - to - child

ratios and supervision. The complaint

revealed that a child was observed in

clothing and a crib soiled with vomit and

nine other toddlers in the room with only

one s taff present. Although an effort was

made by staff to clean the child, the child

was returned to the same soiled crib.

When another agent of the department visited

the facility to investigate the complaint,

she reported to the licensing unit that upon

he r arrival, she found two staff members

mopping the floors while some of the

children napped. She counted seven

children, ages three to five in one room,

three children, ages three to five in a

second room, and one infant in a crib along

with thirteen othe r children in the third

room.

Lavaine Shuler, the owner of S & S Achievers, signed an

acknowledgement of receipt of the suspension letter on July 8,

2003, when it was apparently hand - delivered by a Department

representative. By letter dated July 29, 2003 , counsel for

S & S Achievers requested a formal administrative proceeding to

challenge the suspension. On September 3, 2003, the matter was

forwarded to the Division of Administrative Hearings ("DOAH")

for assignment of an Administrative Law Judge and th e conduct of

a formal administrative proceeding. This matter was given DOAH

Case No. 03 - 3152. The hearing was initially scheduled for

October 29, 2003, and continued four times before being held on

the dates set forth above.

On October 14, 2003, S & S Ac hievers filed an application

to renew its license. By letter dated October 17, 2003, the

Department denied the application, stating the following grounds

for its action:

(1) Your facility was inspected

September 18, 2003 for the purpose of

renewal. Duri ng the inspection the facility

was cited for violations in transportation

requirements; clean and good repair;

toxic/hazardous materials; lighting; outdoor

play area; fencing; bedding and linens;

sanitary diapering area; indoor equipment;

outdoor equipment ; employee training; first

aid supplies; personnel records; and

background screening of employees.

(2) With your application you submitted a

copy of the inspection report from

September 18 with hand written statements on

it to indicate corrective actions had been

made. However, in several instances, these

corrections were not reflected in what the

licensing representatives found at a

reinspection on October 16, 2003.

(3) At the reinspection, the facility was

cited again for transportation requirements;

clean and good repair; toxic/hazardous

materials; lighting; fencing; bedding;

sanitary diapering area; indoor equipment;

outdoor equipment; staff training; first aid

supplies; and screening of employees.

(4) In addition to the violations cited in

paragr aph #3 as repeat violations, the

childcare center was cited for being over

the licensed capacity; bathroom supplies

unavailable; enrollment information missing,

as well as children's health records being

incomplete.

(5) Additionally, you submitted an

app lication with a sworn statement that all

known childcare personnel have submitted

background screening which is not reflected

in your employee files.

Your facility was issued a provisional

license April 14, 2003, for noncompliance

with minimum standards. You were informed

that should inspections show insufficient

progress toward compliance, the department

would seek suspension of the license. You

were further advised that failure to achieve

and maintain compliance with licensing

standards could jeopardiz e future licensing

of [S & S Achievers].

While the licensing representative reports

some cosmetic changes at the center, the

continuing violations are repetitive,

serious, and pose potential risk to children

in your care. The ongoing violations

represent a lack of understanding of the

rules and regulations pertaining to

childcare facilities or a disregard for the

safety of children . . . .

By letter dated October 28, 2003, counsel for S & S

Achievers challenged the denial and requested a formal

administr ative hearing on the question of S & S Achievers'

continued licensure. On November 12, 2003, the matter was

forwarded to DOAH for assignment of an Administrative Law Judge

and the conduct of a formal administrative proceeding. This

matter was given DOAH Case No. 03 - 4240. On November 21, 2003,

an Order was entered granting S & S Achievers' Motion to

Consolidate DOAH Case Nos. 03 - 3152 and 03 - 4240. The

consolidated cases were heard on the dates set forth above.

At the final hearing, the Department present ed the

testimony of: Milhem Ashy and Janice Nilles, family services

licensing counselors for the Department who conducted

inspections of S & S Achievers; Donna Boatwright, an

occupational therapist; Gwendolyn Butler, a child protective

services investigat or for the Department; Linda Sue Shaul, a

Department licensing representative; and Patricia Richardson, a

supervisor in the Department's child care licensing office. The

Department's Exhibits A through KK were admitted into evidence.

S & S Achievers prese nted the testimony of Angela Dorn and

Blanca Trejo, teachers at the facility, and of Lavaine Shuler,

the owner of S & S Achievers. S & S Achievers' Exhibits 1

through 13 were admitted into evidence. Exhibit 13, a

videotaped tour of the facility, was view ed at the hearing but

was not filed at DOAH.

The final volume of the Transcript of the hearing was filed

at DOAH on May 24, 2004. By stipulation, the parties agreed

that their proposed recommended orders would be filed within 30

days of the filing of the transcript. Neither party timely

filed a proposed recommended order. The undersigned contacted

the parties and orally granted their request for additional time

in which to submit their proposed recommended orders. The

Department submitted a Proposed Re commended Order on

September 17, 2004. S & S Achievers did not submit a proposed

recommended order.

FINDINGS OF FACT

Based on the testimony and evidence received at the

hearing, the following findings are made:

1. The Department is the state agency r esponsible for

licensing and regulating child care facilities.

2. S & S Achievers, owned by Lavaine Shuler, was initially

licensed in April 2001 to operate a child care facility in

Apopka. The licensed capacity for the facility was 30 children.

The Dep artment routinely inspected the facility.

3. On October 5, 2001, Milhem Ashy, a licensing counselor

for the Department, conducted a routine inspection of the

facility. Mr. Ashy's inspection checklist reported S & S

Achievers for multiple violations of mi nimum licensing

standards: failure to post a list of planned daily activities

in a place accessible to parents; old, unsafe toys and long

sticks on the outdoor playground; no adult at the facility with

first aid or CPR training; failure to have physical e xamination

and immunization records in children's files; and failure to

complete and document the background screening of facility

staff. Mr. Ashy discussed the deficiencies with Ms. Shuler, who

also received a copy of the inspection checklist.

4. On Feb ruary 18, 2002, Mr. Ashy conducted another

routine inspection of the S & S Achievers facility. Mr. Ashy's

inspection checklist again reported S & S Achievers for multiple

violations of minimum licensing standards. The most critical

violation regarded the staff - to - children ratio. Among the

children at S & S Achievers were some under one year of age.

Florida Administrative Code Rule 65C - 22.001(4)(b) provides that

in groups of mixed ages where children under one year of age are

included, the minimum ratio is one staff member for any four

children. Mr. Ashy observed a ratio of one staff member for

five children. After discussing the matter with Ms. Shuler,

Mr. Ashy decided not to recommend a fine for this violation.

5. On the February 18, 2002, inspectio n, Mr. Ashy found

that the facility continued not to post a list of planned daily

activities in a place accessible to parents. He found

insufficient lighting in the infant room. On the outdoor

playground, Mr. Ashy found that the frame of the swing set wa s

not securely anchored. S & S Achievers continued its failure to

have immunization records in children's files and to have

documentation of staff's background screening.

6. In April 2002, S & S Achievers' license was scheduled

for renewal. On April 15, 2002, Mr. Ashy conducted a renewal

inspection of the facility. In this inspection, Mr. Ashy found

that the kitchen needed cleaning. He noted that the files still

did not indicate sufficient credentialed staff at the facility,

did not document employees' background screening, and did not

contain students' immunization and health examination records.

7. After discussing the noted deficiencies with

Ms. Shuler, Mr. Ashy concluded that S & S Achievers was making

progress toward full compliance. In light o f the good working

relationship between the Department and S & S Achievers, he

recommended that the deficiencies cited in his report should not

affect the facility's license renewal. On April 15, 2002, the

Department issued an annual license to S & S Achi evers.

8. On June 26, 2002, Mr. Ashy conducted a routine

inspection of the facility. He found the following elements of

noncompliance with minimum standards: the infant teacher was

observed caring for three infants, one six - year - old child and

one four - y ear - old child, where the ratio requirements stated

that she should have been caring for no more than four children;

the second teacher was observed caring for 16 children,

including one child under one year of age, three one - year - olds,

four two - year - olds, one three - year - old, one four - year - old, and

six children who were at least five years old; two children were

observed in the rest room without any adult supervision; the

facility's plan of scheduled activities was not posted in a

place accessible to parents ; the floors were stained and

cluttered, tiles were peeling off the floors, and walls were

peeling in the infant room; plastic and paper trash were

observed on the playground; the swing set frame was not

anchored; the facility could not document that it ha d conducted

the monthly fire drills required by Department rules; the

facility had no documentation that any staff member was trained

in first aid or infant and child CPR.

9. The facility continued to lack documentation regarding

background screening an d student health records. On his

inspection checklist, Mr. Ashy noted that Ms. Shuler would be

required to bring in the required documents for review at the

Department's offices.

10. By letter dated June 27, 2002, Patricia Richardson,

supervisor of the D epartment's child care licensing office,

notified S & S Achievers that the repeat violation of ratio and

supervision requirements were being referred to the Department's

legal counsel with a recommendation that a fine be imposed on

S & S Achievers. Ms. Ri chardson further requested that S & S

Achievers provide a "full and complete corrective action plan"

addressing all the violations cited in the June 26, 2002,

inspection checklist and that the plan be submitted no later

than July 10, 2002.

11. Ms. Shuler scheduled a meeting with Mr. Ashy for

July 5, 2002. At that meeting, she provided some files

regarding staff and children at the facility. On July 6, 2002,

Ms. Shuler filed a plan of corrective action responsive to

Ms. Richardson's letter of June 27, 200 2.

12. Nonetheless, on July 12, 2002, the Department filed an

Administrative Complaint against S & S Achievers seeking a civil

penalty, totaling $200.00 for the violations of staff - to - child

ratio requirements and for the failure to supervise the children

in the bathroom. S & S Achievers did not contest the imposition

of the penalty.

13. On July 16, 2002, Mr. Ashy conducted a follow - up

inspection of S & S Achievers. He found that S & S Achievers

was within the required staff - to - child ratios, but was in e xcess

of its licensed capacity of 30 children.

14. On August 30, 2002, Mr. Ashy visited the S & S

Achievers facility and observed that there were 40 children at

the facility. He also noted that the facility was again out of

compliance with staff - to - child ratios and instructed S & S

Achievers that it was required to comply with the Department's

minimum standards for child care facilities.

15. On October 10, 2002, Mr. Ashy conducted a routine

inspection of the S & S Achievers facility. He found the

follow ing elements of noncompliance with minimum standards: the

kitchen needed to be cleaned; the outdoor playground contained

debris and rusted toys; the facility still had no documentation

of monthly fire drills; the frame of the swing set remained

unanchored ; and staff training was still not documented. A

follow - up inspection on October 31, 2002, indicated that the

facility had corrected the items cited in the October 10, 2002,

inspection.

16. On December 30, 2002, Mr. Ashy conducted a surprise

inspection. In this inspection, he looked only at the

facility's staff - to - child ratios and supervision of children.

The inspection found no violation of staff - to - child ratios and

found that adult supervision of children was adequate.

17. On March 17, 2003, Mr. Ashy conducted the annual

license renewal inspection of S & S Achievers. He counted a

total of 32 children under the supervision of S & S Achievers,

either at the facility itself or on a field trip. Mr. Ashy

found that the facility did not maintain a log for all children

that it transported in its van, did not have documentation of an

annual vehicle inspection, and did not have verification of

insurance coverage for its van. The swing set frame was still

not anchored. The facility did not have documentation showing

that its staff persons had enrolled in or completed the required

introductory course in child care or that staff had completed

the required eight hours of annual in - service training. The

facility still lacked documentation of criminal background

screening for all staff.

18. By letter dated March 20, 2003, Ms. Shuler clarified

that S & S Achievers did not provide transportation to and from

the facility for any of its students. Therefore, the

deficiencies cited by Mr. Ashy related to transportat ion did not

require correction. A follow - up inspection by Mr. Ashy on

April 9, 2003, found that S & S Achievers had corrected the

remaining items found deficient in the March 17, 2003,

inspection.

19. By letter dated April 10, 2003, Ms. Richardson

inform ed Ms. Shuler that S & S Achievers would be issued a

provisional license, pending completion of a corrective action

plan to increase compliance with minimum standards. This

provisional license was to be valid for a period of six months.

S & S Achievers d id not contest the issuance of the provisional

license.

20. By letter to Ms. Shuler dated May 19, 2003,

Ms. Richardson noted the repeated violations of S & S Achievers

regarding ratios and supervision, as well as the maintenance of

records. She stated th at these continuing violations were

"repetitive, serious, and reflect a lack of organization in

management and oversight of the facility." Ms. Richardson

"strongly recommended" that Ms. Shuler enroll in a training

course for child care facility owners. M s. Richardson notified

Ms. Shuler that her facility "will be inspected more frequently

during this provisional period for increased compliance," and

cautioned that insufficient progress toward compliance could

lead to suspension of the license and could je opardize future

licensing for S & S Achievers.

21. Donna Boatwright was a pediatric occupational

therapist. From roughly April until June 2003, Ms. Boatwright

visited S & S Achievers from one to three times per week to

provide therapy to a one - year - old c hild with spina bifida. On

June 4, 2004, Ms. Boatwright arrived at S & S Achievers to find

her patient in a crib. The child was covered in vomit, "from

his head to his butt, feet, on both sides, back and front," as

if he had rolled around in it. Ms. Boa twright picked up the

child and called for the staff person in the room to help her

clean him.

22. Ms. Boatwright noted that there was one adult in the

room caring for ten small children, all of whom she described as

"toddlers." She had seen similar ra tios on previous visits.

The staff person took the baby from Ms. Boatwright and left the

room. For about five minutes, Ms. Boatwright was the only adult

in the room with nine children.

23. The staff person returned with the child after

cleaning him. Ms . Boatwright took the child to another room and

treated him. She saw that his clothes had been changed, but he

still smelled strongly of vomit. After Ms. Boatwright was

finished, a staff person returned the child to his crib.

Ms. Boatwright did not beli eve the crib had been cleaned,

because it still smelled of vomit.

24. On June 4 or 5, 2003, Ms. Boatwright wrote a letter to

Ms. Richardson to report this incident. In her letter,

Ms. Boatwright added that in her visits to S & S Achievers, she

had observ ed two toddlers playing in a toilet, dirty and broken

toys within reach of small children, staff persons constantly

yelling at children, and a general atmosphere of chaos.

25. On or about June 5, 2003, Gwendolyn Butler, a child

protective services investi gator for the Department, went to

S & S Achievers to investigate Ms. Boatwright's allegations.

Ms. Butler counted 24 children in the facility. She stated that

the youngest child was about three months old and the oldest was

four or five years old. Ms. B utler noted that there were only

two adults to supervise the 24 children spread among four or

five rooms of the facility, meaning that some of the children

were unsupervised. She was never able to see Ms. Boatwright's

patient or to contact the child's par ents because Ms. Shuler was

unable to give her a correct phone number or address for the

family. Ms. Butler closed the investigation with a finding of

"some indicators" of physical injury and threatened harm to

children and a "verified" finding of inadequ ate supervision.

26. By letter dated June 25, 2003, Ms. Richardson notified

Ms. Shuler of the Department's decision to suspend the license

of S & S Achievers for a period of 30 days. On July 22, 2003,

Ms. Shuler met with Mr. Ashy and initially informed h im that she

intended to comply with the suspension and make use of the

30 - day period to bring her facility into compliance with the

Department's minimum standards. However, later on the same day,

Ms. Shuler wrote Mr. Ashy a note stating that she wished to

confer with her attorney before making any decision. S & S

Achievers challenged the suspension decision, and the facility

remained open pending the results of its challenge.

27. On August 28, 2003, Janice Nilles, a licensing

counselor for the Department , conducted an inspection of the

S & S Achievers facility. Ms. Nilles found the facility once

more in violation of staff - to - child ratios. She found no daily

plans posted. She noted several aspects of disrepair in the

facility: exposed metal on a doorfr ame; a metal bracket holding

some carpeting in place had come loose, exposing a cutting edge

and causing a tripping hazard; three electrical outlets were

uncovered; a nail protruded from the wood frame of the girls'

bathroom door; detergents and bleach wer e within the reach of

children in the boys' bathroom; the general storage of cleaning

products did not prevent children's access to them; soap and

paper towels or air dryers were not provided in the bathrooms;

old wooden chairs created a splinter hazard; a nd lighting was

insufficient.

28. As to the outdoor playground, Ms. Nilles found debris

and broken play equipment. The wooden gate to the playground

was unaligned, with an exposed nail between the slats. The

ground cover within the landing zones of sw ings and slides was

not properly maintained. Wooden play blocks littered the

playground, creating landing and tripping hazards. A protruding

screw on the slide created a hazard.

29. Ms. Nilles found that the facility did not provide

developmentally a ppropriate toys for the ages of children in

care and did not provide enough play equipment for the number of

children under care at the facility. She found that linens,

pillows, and blankets were not provided for napping children,

and some of the bedding that was provided was dirty. The

facility's first aid kit was incomplete. The facility still did

not have on file the required background screenings for staff or

the immunization information for children.

30. On September 18, 2003, Ms. Nilles conducted an

inspection for the renewal of S & S Achievers' provisional

license. She found that the facility had "repaired" the loose

carpet bracket by placing a rug over it. The splintered wooden

chairs had not been replaced. Ms. Nilles observed cans of paint

in side a storage cabinet in the infant room, with no secure lock

for the cabinet. The first aid kit remained incomplete. The

diapering changing area was not on an impermeable surface. The

wooden blocks remained on the playground, and the broken play

equip ment had not been repaired or replaced. A nail protruded

on the slide. The ground cover for the landing zones of the

slides and swings remained insufficient. The facility did not

have documentation showing that staff had enrolled in the

introductory cou rse in child care or had completed the required

eight hours of in - service training. The facility had no

documentation of criminal background screening for its

employees.

31. On October 14, 2003, one day before the scheduled

expiration of the provisiona l license, Ms. Shuler applied to

renew the license of S & S Achievers. Ms. Shuler hand - delivered

the application to Ms. Richardson and told Ms. Richardson that

every violation noted in the September 18, 2003, inspection had

been corrected.

32. Because of the number and frequency of S & S

Achievers' violations, Ms. Richardson sent a team of licensing

counselors to inspect the facility on October 16, 2003, in order

to verify Ms. Shuler's claim to have corrected all of the noted

deficiencies. The inspection revealed that some of the

violations had been corrected, but that many others continued:

the failure to document criminal background screening of

employees; dangerous conditions on the playground; toxic

cleaning supplies accessible to children; no soap or paper

towels in the bathrooms; diaper changing area not on an

impermeable surface; the protruding nail on the slide;

incomplete first aid kit; and operating in excess of licensed

capacity.

33. By letter dated October 17, 2003, the Department

notified Ms. Shuler that her license would not be renewed based

upon continuing violations that were "repetitive, serious, and

pose potential risk to children" under the care of S & S

Achievers.

34. At the hearing, Ms. Shuler testified at length on the

various violat ions found by the Department's inspectors. She

admitted to most of them, attempted to minimize others, and

sought to leave the impression that Mr. Ashy and Ms. Richardson

were of little assistance and seemed intent on closing her

facility. In fact, the e vidence establishes that the Department

bent over backward to help Ms. Shuler bring her facility close

enough to the minimum standards to justify keeping it open. The

evidence leads to a finding that Ms. Shuler did not take the

Department's authority seri ously and that the Department was, if

anything, too lenient in allowing her to avoid the consequences

of repeated, serious violations of its minimum standards.

35. Several parents testified at the hearing to the effect

that even if all the alleged violati ons were true, they would

nonetheless continue to place their children at S & S Achievers.

This testimony is credited as honest, but it is irrelevant. To

keep its license, S & S Achievers was bound to comply with the

requirements of Florida Administrativ e Code Chapter 65C - 22, even

if parents were willing to waive those requirements.

36. At the hearing, Ms. Shuler introduced considerable

evidence that after receiving the October 17, 2003, denial

letter, she finally corrected many of the deficiencies in th e

structure of her facility and in the playground. This evidence

is irrelevant to the instant cases, though it should assist

Ms. Shuler should she apply for a child care facility license in

the future.

CONCLUSIONS OF LAW

37 . The Division has jurisdi ction over the parties to and

subject matter of this proceeding pursuant to Section 120.569

and Subsections 120.57(1) and 402.310(2), Florida Statutes

(2003).

38. The Department is the state agency responsible for

licensing, inspecting, and regulating chi ld care facilities.

See §§ 402.301 - 402.319, Fla. Stat. (2003).

39. S & S Achievers, as a licensed child care facility, is

required to comply with the standards established in Sections

402.301 through 402.319, Florida Statutes (2003), and the rules

implem enting those provisions.

40. Subsection 402.310(1)(a), Florida Statutes (2003),

provides that the Department may deny, suspend, revoke a

license, or impose an administrative fine "for the violation of

any provision of ss. 402.301 - 402.319 or rules adopted

thereunder." Florida Administrative Code Chapter 65C - 22,

setting forth standards for child care facilities, implements

Sections 402.301 through 402.319, Florida Statutes (2003).

41. The Department has the burden to prove the allegations

against S & S Ac hievers by clear and convincing evidence in

order to suspend or deny renewal of S & S Achievers' license to

operate a child care facility . See Dept. of Banking & Finance

v. Osborne, Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996).

42 . The clear and convinci ng evidence standard has been

described as follows:

Clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly 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 hesitancy, as to the

truth of the allegations sought to be

established.

Inquiry Concerning Judge Davey , 645 So. 2d 398, 404 (Fla. 1994),

(quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)) (internal brackets omitted). Accord Westinghouse

Electric Corporation, Inc. v. Shuler Brothers, Inc. , 590 So. 2d

986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279 (Fla.

1992) ("Although this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous.")

43. The relevant text of the June 25, 2 003, Department

letter suspending the license of S & S Achievers is set forth in

the above Preliminary Statement. The letter alleges repeated

violations of: the staff - to - child ratios set forth in

Subsection 402.305(4)(a), Florida Statutes (2003); the dir ect

supervision requirements of Florida Administrative Code Rule

65C - 22.001(5)(a) 1/ ; the record keeping requirements of Florida

Administrative Code Rule 65C - 22.006(2), relating to children's

health requirements; the record keeping requirements of Florida

A dministrative Code Rule 65C - 22.006(5), relating to personnel

records; the staff training requirements of Florida

Administrative Code Rule 65C - 22.003(2) and (6) 2/ ; the fire safety

requirements of Florida Administrative Code Rule 65C - 22.002(7);

the first aid and CPR training requirements of Florida

Administrative Code Rule 65C - 22.004(2); requirements that a

facility not exceed its licensed capacity, derived from

Subsections 403.305(5) and (6), Florida Statutes (2003), and

Florida Administrative Code Rule 65C - 22.002(3) and (4), setting

forth square footage - per - child requirements. The letter further

alleges the elements of Ms. Boatwright's complaint regarding the

child covered in vomit, as investigated by Ms. Butler of the

Department.

44. The Findings of Fact set forth above establish by

clear and convincing evidence that S & S Achievers repeatedly

violated each of the cited rules. The inspection reports and

the testimony of the inspectors, Mr. Ashy and Ms. Nilles,

demonstrated that the inspections were conduc ted in a fair

manner and that the cited violations, in fact, occurred. The

testimony of Ms. Boatwright as to the child covered in vomit was

completely credible, as was the testimony of Ms. Butler

regarding her investigation of the incident. Ms. Shuler of fered

virtually no evidence to dispute that the alleged violations

occurred as described by the Department's witnesses.

45. The relevant portion of the October 17, 2003,

Department letter denying S & S Achievers' license renewal

application is set forth in the above Preliminary Statement.

The letter alleges that the September 18, 2003, renewal

inspection revealed violations of: the transportation

requirements of Florida Administrative Code Rule 65C - 22.001(6);

the requirement that a facility be clean a nd in good repair

found at Florida Administrative Code Rule 65C - 22.002(1)(b) 3/ ; the

requirement that areas accessible to children be free of toxic

substances and hazardous materials found at Florida

Administrative Code Rule 65C - 22.002(1)(c) 4/ ; the requirem ent

that outdoor play areas be securely fenced and be clean and

free of hazards found at Florida Administrative Code Rule

65C - 22.002(4)(c); the requirement that bedding and linens be

safe and sanitary found at Florida Administrative Code Rule

65C - 22.002(5) (c); the requirement of a sanitary diapering area

found at Florida Administrative Code Rule 65C - 22.002(8)(b); the

requirement that indoor toys be safe and suitable to each

child's age and development found at Florida Administrative Code

Rule 65C - 22.002(9)( a); the requirement that outdoor play

equipment be suitable, safe, and properly maintained found at

Florida Administrative Code Rule 65C - 22.001(9)(b); the employee

training requirements of Florida Administrative Code Rule

65C - 22.003(2), and the in - service training requirements of

Florida Administrative Code Rule 65C - 22.003(5) 5/ ; the first aid

training and supply requirements of Florida Administrative Code

Rule 65C - 22.004(2); the record keeping requirements of Florida

Administrative Code Rule 65C - 22.006(2), relating to children's

health requirements; and the record keeping requirements of

Florida Administrative Code Rule 65C - 22.006(5), relating to

personnel records, including criminal background screening.

46. The letter goes on to state that when she submit ted

her application, Ms. Shuler attested that corrective action had

been taken on the listed violations. However, at the

October 16, 2003, reinspection, the facility was again found in

violation of the following requirements: transportation; "clean

and g ood repair"; toxic/hazardous materials; fencing; sanitary

diapering area; indoor and outdoor play equipment; training and

background screening of employees; and first aid supplies.

47. The Findings of Fact set forth above establish by

clear and convinci ng evidence that S & S Achievers repeatedly

violated each of the cited rules, except for the transportation

requirements of Florida Administrative Code Rule 65C - 22.001(6).

The Department did not establish that Ms. Shuler provided

transportation to and fro m her facility during any time period

covered by the inspections.

48. Subsection 402.310(1)(b), Florida Statutes (2003),

directs the Department to consider the following factors in

determining the appropriate disciplinary action for the

violation of any provision of Sections 402.301 through 402.319,

Florida Statutes (2003), or rules adopted pursuant thereto:

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided 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 provisi ons of

ss. 402.301 - 402.319 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee.

49. The many and continuing violations more than justified

the Depar tment's decision to suspend the license of S & S

Achievers and later to deny renewal of the license to operate a

child care facility. Some of the continuing violations posed

direct and severe hazards to the health and safety of the

children in the care of S & S Achievers: toxic cleaning

materials within reach of children; lack of proper first aid or

CPR training for staff coupled with inadequate first aid

supplies; persistent violations of staff - to - child ratio

requirements; inadequate direct supervision o f the children.

Some of the other continuing violations posed real, though less

severe, dangers to the health and safety of the children:

inadequately trained staff; worn out and splintered furniture;

lack of soap and toweling in bathrooms; the presence o f wooden

blocks and other debris on the outdoor playground, as well as

inadequate landing areas for swings and slides. Of particular

concern was the persistent failure of S & S Achievers to

document the criminal background screening of its employees or

to document the health and immunization records of the children

in its care.

50. Compounding the violations was Ms. Shuler's casual

attitude toward bringing her facility into compliance with the

Department's minimum standards. Despite the Department's almo st

excessive forbearance, Ms. Shuler appears never to have taken

the Department's enforcement authority seriously until it denied

S & S Achievers' application for license renewal. At that time,

Ms. Shuler appears to have undertaken some efforts to bring h er

facility into compliance. Ms. Shuler's after - the - fact

corrections do not alter the fact that the Department had more

than ample cause to deny her license application, given her

lengthy history of noncompliance and persistent failure to

correct violatio ns of the minimum standards for child care

facilities found in Florida Administrative Code Chapter 65C - 22.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Se rvices issue a final order:

1. Sustaining its initial decision to suspend the license

of S & S Achievers for the reasons set forth in the Department's

letter dated June 25, 2003; and

2. Sustaining its initial decision to deny the application

of S & S Ach ievers for a license to operate a child care

facility for the reasons set forth in the Department's letter

dated October 14, 2003, with the exception that S & S Achievers

be found not to have violated the provisions of Florida

Administrative Code Rule 65C - 22.001(6), related to the

transportation of children.

DONE AND ENTERED this 9th day of February, 2005, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hear ings

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 9th day of February, 2005 .

ENDNOTES

1/ Florida Administrative Code Rule Chapter 65C - 22 was amended

on July 13, 2003, and again on September 12, 2004. The

references in the text are to the rules as they were at the time

of the alleged violations. Where the current text or num eration

of the rules varies from the contemporaneous version, the

current version is identified by footnote.

2/ Currently Florida Administrative Code Rule 65C - 22.003(2)

and (7).

3/ Currently Florida Administrative Code Rule 65C - 22.002(1)(a).

4/ Curre ntly Florida Administrative Code Rule 65C - 22.001(1)(b).

5/ Currently Florida Administrative Code Rule 65C - 22.003(6).

COPIES FURNISHED :

Richard Cato, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, F lorida 32801 - 1782

Larry H. Colleton, Esquire

2300 East Concord Street

Orlando, Florida 32803

Joe Garwood, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josi e 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 d ays 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.