03-003153 Department Of Children And Family Services vs. Ms. Sylvia`s It`s A Better World Daycare And Learning Center Status: Closed Recommended Order on Friday, December 12, 2003.

Summary: Required documentation regarding employees` having hours and proof of CPR and first-aid training were not established. Recommend denial of application for relicensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3153

)

MS. SYLVIA'S IT'S A )

BETTER WORLD DAYCARE )

AND LEARNING CENTER, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on November 4, 2003, in Tavares, Florida, before the Division of

Administrative Hearings, by its de signated Administrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

F or Respondent: Sylvia Mitchell, pro se

Ms. Sylvia's It's a Better World Day Care

1904 Bradford Avenue

Leesburg, Florida 34748

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of

Children and Family Service s should renew the daycare license of

Respondent.

PRELIMINARY STATEMENT

On July 25, 2003, the Department of Children and Family

Services (Department) issued an Administrative Complaint to

Respondent, Sylvia Mitchell, Ms. Sylvia's It's a Better World

Day C are. The Administrative Complaint charged Respondent with

failure to comply with Sections 402.301 - 402.319, Florida

Statutes. Specifically, the Administrative Complaint alleged

that Respondent was cited on March 23, 2003, for non - compliance

with sufficien tly trained staff in that the director and staff

were unable to verify their 40 - hour introductory child care

training and were not able to document any staff being First Aid

or CPR trained. The Administrative Complaint alleged that on

April 23, 2003, the facility was cited again for the same

violations. Further, the Administrative Complaint alleged that

Respondent submitted fraudulent documents to the Department.

The Administrative Complaint informed Respondent that its

license to operate the daycare cen ter "is hereby revoked."

Respondent disputed the allegations of the administrative

complaint and requested an administrative hearing. The

Department forwarded the request for a hearing to the Division

of Administrative Hearings on or about September 3, 2 003. A

formal hearing was scheduled for November 4, 2003.

At the commencement of the hearing, counsel for the

Department clarified the status of Respondent's license. That

is, that Respondent's provisional license was scheduled to

expire on August 8, 2003, and that the Administrative Complaint

should not have characterized the action as a revocation, but

should have informed Respondent that no new license would be

issued upon the expiration of the provisional license.

Since the Administrative Complaint was issued on July 25,

2003, before the expiration of Respondent's license, the action

taken by the Department is in the nature of a denial of an

application to renew Respondent's day care license.

At hearing, Petitioner presented the testimony of Elizab eth

Ainslie, Melissa Stephan, Clark Henning, Leighton Edwards, and

Glenda McDonald. Petitioner's Exhibits 1 through 9 were

admitted into evidence. Respondent presented the testimony of

Amy Ramirez and Sylvia Mitchell. Respondent's Exhibits 1

through 9 w ere admitted into evidence. Official recognition was

taken of Sections 402.305 and 402.319, Florida Statutes (2003),

and Florida Administrative Code Rules 65C - 22.004 and 65C - 22.006.

A Transcript consisting of one volume was filed on

November 24, 2003. T he Department timely filed a Proposed

Recommended Order and Respondent timely filed a written post -

hearing submission, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Sylvia Mitchell owned and operated Ms. Sy lvia's It's a

Better World Day Care (the Center) which was located in

Leesburg, Florida. Its annual license was scheduled to expire

in May 2003.

2. Clark Henning is a daycare licensing counselor with

District 13 of the Department. He conducted a relice nsing

inspection of the Center on March 31, 2003. He was accompanied

by Leighton Edwards, who is also employed by the Department.

3. During the course of the relicensing inspection,

Mr. Henning completed a 63 - item checklist of the facility.

There were s everal areas in which Mr. Henning noted that the

Center was not in compliance with applicable statutes and rules.

Among the areas of non - compliance noted were that there was

insufficient documentation of required staff training and no

documentation that a ny staff member present at the Center was

current in cardiopulmonary resuscitation (CPR) and first - aid

training.

4. The checklist shows a required compliance date of

April 30, 2003, for the 40 - hour training requirement and

April 7, 2003, for the requireme nt that any staff present was

current in first - aid training and CPR training.

5. Because there were areas of non - compliance, Mr. Henning

also completed an Intent to Impose Administrative Action which

he gave to Ms. Mitchell on March 31, 2003. The Notice, and the

checklist, included the following comments:

40 - Hour Training (2)(a)

* * *

Director, SM, could not document 40 hours

training. Has certificates for 20 - hours and

10 - hours only. States she has enrolled in

the 10 - hour cour se.

Staff member, BH, could not document 40

hours training. Has certificates for 20 -

hours and 10 - hours only.

Staff member, JE, could not document 40 -

hours training. Has certificates for 20 -

hours and 10 - hours only.

* * *

Fir st Aid staff/Supplies (2)(a - c)

* * *

Could not document any staff on site that

was current in First Aid training.

* * *

CPR Staff(2)(a,b)

* * *

Could not document that any staff pre sent

was current in CPR.

6. In response to the Intent to Impose Administrative

Action, Ms. Mitchell sent a letter dated April 23, 2003, to

Mr. Henning. Paragraph 2 of the response stated as follows:

"CPR/first aid provided on each employee. Copy's [sic] provided

on C.P.R. & 1st aid."

7. Mr. Henning was unsure what "provided" meant as he did

not receive a copy of first aid or CPR certificates. However,

based upon Ms. Mitchell's representations in her April 23, 2003,

response letter, Mr. Henning rec ommended the approval of the

issuance of a provisional license to the center. The

provisional license was issued on May 9, 2003, with an

expiration date of August 8, 2003. The Department issued a

provisional license rather than a regular license because

several items were found to be in non - compliance. Despite the

non - compliance items, Mr. Henning did not observe anything that

jeopardized the children's safety:

The children were safe in the facility with

the providers that she had. So there was no

saf ety issue associated with the

noncompliance items. So then to me it was

reasonable to give her an opportunity to

come in alignment with statutes and rules

without closing her down. Because again, I

didn't feel the children themselves were in

an unsafe si tuation.

8. Mr. Henning made an impromptu visit to the Center on

April 22, 2003, to see how the facility was coming along with

the non - compliance items and to offer technical assistance.

However, the facility was locked at that time and no one was

th ere.

9. Ms. Mitchell left the Center for maternity leave

sometime in April 2003, as she had a baby on April 27, 2003.

10. Mr. Henning returned to the Center on July 3, 2003, to

conduct another relicensing inspection and to determine whether

Ms. Mitchell brought the facility into compliance. Mr. Henning

was accompanied by Ms. Glenda McDonald, another daycare

licensing counselor. Ms. Mitchell was at the Center on July 3,

2003, although she had not yet returned to work.

11. As a result of the July 3, 2003 , licensure

reinspection, Mr. Henning prepared another reinspection

checklist. He again found the facility to be in non - compliance

in the area of training but found the facility to be in

compliance in the areas of "first aid staff/supplies" and "CPR

staff ."

12. However, during the inspection, Mr. Henning examined

copies of the CPR and first - aid cards showing Ms. Mitchell's

name as having met those requirements. The CPR card indicates

it is from the American Heart Association. The first - aid card

indicate s it is from Lake Technical Center. Her name was

written on both copies in cursive handwriting.

13. Ms. McDonald noticed that the CPR and first - aid cards

were photocopies but the copies were signed in ink. The ink

signatures were original signatures that had not been copied.

Ms. McDonald recognized that these were not typical of CPR and

first - aid cards.

14. Mr. Henning faxed the copies given to him by

Ms. Mitchell to Ms. Elizabeth Ainslie, the Director of the

Hearts of Lake County Training Center. Hearts of Lake County is

one of three CPR and first - aid training centers in Lake County.

Ms. Ainslie immediately noticed that Ms. Mitchell's name was

handwritten because such cards never go out of their training

center handwritten as they are computer p rocessed. She

indicated her concerns in the margin of the copy faxed to her

and faxed it back to Mr. Henning. She also checked her

attendance records as the CPR card shows a date of September 9,

2002, as the date of issuance. Ms. Ainslie did not find

Ms . Mitchell's name on the class roster for that date.

15. Additionally, Mr. Henning also faxed a copy of the

first - aid card purporting to be that of Ms. Mitchell's to

Melissa Stephan, a counselor with the Lake Technical Center.

She confirmed that Lake Tec hnical does not issue cards with a

person's name handwritten on it as the cards are issued by

computer. Further, she checked the records and did not find

anything to indicate that Ms. Mitchell had taken the first - aid

course at Lake Technical Center.

16. Mr. Henning also looked at employees' files and found

no original CPR or first - aid cards in the employees' files. The

cards in the employees' files also contained the names written

in cursive over the copy of a card. None of the CPR or first -

aid cards ha d names which were typed or computer generated.

17. After receiving this information from Ms. Ainslie and

Ms. Stephan, Mr. Henning wrote a detailed memorandum to his

supervisor recommending that the Department not issue an annual

license to Respondent. He based his decision on his

determination that the cards presented to him regarding CPR and

first - aid training were forgeries and on the other non -

compliance areas noted during his licensure inspections.

18. Ms. Mitchell offered conflicting evidence as to how

and why the CPR and first - aid cards were altered and put in the

employees' files. She does not dispute that the cards were

altered but does dispute that there was any intent to defraud

anyone or falsify records.

19. At hearing, Ms. Mitchell did produce documentation

that, contrary to Mr. Henning's findings, staff member, J.E.,

had the required 40 hours of training. Documents produced at

hearing regarding staff member B.H. and Ms. Mitchell support

Mr. Henning's findings regarding the status of t heir training.

20. Ms. Mitchell also produced copies of what appear to be

authentic Heartsaver First Aid cards for herself, Tracy Chatman,

and Amy Ramirez. The cards reference a combination of CPR and

first aid: "First Aid/Adult CPR& AED/Environmental." However,

Amy Ramirez is a parent of children who were enrolled in the

Center, not an employee. The record is unclear as to who Tracy

Chapman is. No other cards were produced as to any other staff

member. Further, these cards are dated October 2003, we ll after

the corrective action deadline and after the Administrative

Complaint was filed.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat . (2003).

22. The Department of Children and Family Services is the

agency charged with the responsibility of licensing child care

facilities in the state of Florida. Chapter 402, Fla. Stat.

23. Ms. Mitchell challenges the non - renewal of the licens e

to operate her day care center. Accordingly, as the party

asserting the affirmative of an issue before this administrative

tribunal, the Respondent has the burden of proof. Florida

Department of Transportation v. J.W.C. Company , 396 So. 2d 778

(Fla. 1s t DCA 1981). Respondent has not met her burden to prove

entitlement to license renewal.

24. The Administrative Complaint charges Respondent with

failure to comply with Sections 402.301 - 402.319, et seq. ,

Florida Statutes. 1/ Specifically, the Administra tive Complaint

charges Respondent in pertinent part as follows:

4. On March 23, 2003, the facility was

cited for non compliance with sufficiently

trained staff. More specifically, the

director and staff members were unable to

verify their 40 hour introd uctory child care

training. The facility was also cited for

not being able to document any staff being

First Aid or CPR trained.

5. On April 23, 2003, the Respondent

corresponded in written format that First

Aid and CPR had been provided on each

employe e. This letter also stated that all

staff training had been provided also.

6. On July 3, 2003, the facility was cited

again for the same concerns listed above.

The Respondent inadvertently showed the

counselor training c ertificates that had

paper taped over the name and certificate

numbers. The Respondent, also gave the

counselor copies of First Aid and CPR [sic]

that were allegedly current.

7. On July 3, 2003, both the instructors

for Hearts of Lake County CPR trainin g,

Elizabeth Ainslie, and Lake Technical First

Aid, Melissa Stephan, were contacted. Both

examined the submitted forms and verified in

writing that the cards had been illegally

altered.

8. The Department has monitored the

facility and offered assistance in

correcting these repeated violations, but

the Respondent has failed to remedy this

pattern of violations. The Respondent has

also submitted fraudulent documents.

25. Section 402.310, Florida Statutes, authorizes the

Department to take disc iplinary actions regarding licenses of

child care facilities, and reads in pertinent part as follows:

402.310 Disciplinary actions; hearings upon

denial, suspension, or revocation of

license; administrative fines. --

(1)(a) The department or local lic ensing

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.402.301 - 402.319 or rules adopted

thereunder. However, where the violation

could or do es cause death or serious harm,

the department or local licensing agency may

impose an administrative fine, not to exceed

$500 per violation per day.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in para graph (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 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.

26. Section 402.305, Florida S tatues, provides licensing

standards for child care facilities. Subsection (7) requires

that the minimum standards for childcare facilities include

requirements for first - aid treatment and pediatric CPR.

Further, subsection (7) specifically requires that "the minimum

standards shall require that at least one staff person trained

in cardiopulmonary resuscitation, as evidenced by current

documentation of course completion, must be present at all times

that children are present."

27. Florida Administrative Code Rule 65C - 22.004(2)(a)

requires each child care facility to have at least one staff

member with a valid certificate of course completion for first -

aid training and infant and child CPR procedures. It further

requires one staff member satisfying these training requirements

to be present at all times that children are in the care of the

facility, both on - site and on field trips.

28. Regarding record keeping, Florida Administrative Code

Rule 65C - 22.006(1) and (6)(e) requires the operator of a child

care facility to keep on file and have available at the facility

during the hours of operation for the licensing authority's

review, documentation that all staff members identified as being

relied upon in meeting the CPR and first - aid requirements

described abo ve.

29. The Department argues in its Proposed Recommended

Order that Section 402.319, Florida Statutes, which establishes

criminal penalties for making false statements or

misrepresentations on applications for licensure under Sections

402.301 through 40 2.318, Florida Statutes, comes into play

regarding denial of licensure. However, this criminal statute

and its sanctions is beyond the scope of this administrative

proceeding.

30. Regardless of her intentions in the course of keeping

altered documents i n her employees' files, Respondent did not

meet her burden of demonstrating that the required documentation

existed or was available to the Department showing that the

staff had the required hours of specified child care training or

the required first - aid and CPR training. Further, Respondent

failed to correct these violations over time.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order denying Respondent's application for relicensure.

Since the Department acknowledged that no child was in danger,

it is further recommended that the denial be without prejudice

to her right to apply for licensure in the future.

DONE AND ENTERED th is 12th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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

D ivision of Administrative Hearings

this 12th day of December , 2003.

ENDNOTE

1/ No specific provision of Chapter 402, Florida Statutes, or

Chapter 65C - 22, Florida Administrative Code, is cited in the

Administrative Complaint.

COPIES FURNISHE D:

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

Sylvia Mitchell

1904 Bradford Avenue

Leesburg, Florida 34748

Paul Flounlacker, 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

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.