04-001644 Selina Brew vs. Department Of Children And Family Services
 Status: Closed
Recommended Order on Tuesday, October 5, 2004.


View Dockets  
Summary: Petitioner failed to follow proper emergency procedures when a teacher reported that she thought that a child had swallowed rat pellets. Recommend fine and one-month suspension of license.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SELINA BREW, )

11)

12Petitioner, )

14)

15vs. ) Case Nos. 04 - 1644

22) 04 - 3002

26DEPARTMENT OF CHILDREN AND )

31FAMILY SERVICES, )

34)

35Respondent. )

37)

38RECO MMENDED ORDER

41On August 25, 2004, a final administrative hearing in these

51cases was held in Orlando, Florida, before Daniel M. Kilbride,

61Administrative Law Judge, Division of Administrative Hearings.

68APPEARANCES

69For Petitioner: Barry R. Nager, Esquire

75PMB 211

775703 Red Bug Lake Road

82Winter Springs, Florida 32708

86Circe Zamora, Esquire

891801 East Colonial Drive, Suite 108

95Orlando, Florida 32803

98For Respondent: Beryl Thompson - McClary, Esquire

105Department of Children and

109Family Services

111400 West Robinson Street, Suite S - 1106

119Orlando, Florida 32801

122STATEMENT OF THE ISSUES

126Whether Petitioner's license to operate a day care center

135should be suspended or revoked.

140Whether Petitioner's license to operate a day care center

149should be renewed.

152PRE LIMINARY STATEMENT

155By certified letter dated March 23, 2004, Respondent,

163Department of Children and Family Services, informed Petitioner,

171Selina Brew, 1 that her license to operate a day care facility was

184being revoked. The proposed revocation was based upon the

193results of Respondent's inspection of Petitioner's facility on

201March 5, 2004, which alleged noncompliance with applicable

209licensing statutes and rules.

213Petitioner disputed the facts underlying Respondent's

219decision, and on April 22, 2004, by an a mended petition, she

231timely requested a formal administrative hearing. On May 4,

2402004, Respondent referred the matter to the Division of

249Administrative Hearings (DOAH) for the assignment of an

257Administrative Law Judge to conduct the hearing requested by

266P etitioner.

268Subsequently, on June 10, 2004, Respondent notified

275Petitioner that her application for renewal of her license to

285operate a child care center, known as Today's Kids, was being

296denied based on the same allegations contained in the March 23,

3072004 , letter. Petitioner denied the allegations, and this

315matter was referred to DOAH on August 24, 2004. With the

326agreement of the parties, these two cases were consolidated.

335Following discovery, the final hearing was scheduled for

343and held on August 25, 2 004. At the hearing, official

354recognition was taken of Sections 402.26 - 402.319, Florida

363Statutes (2004), and Florida Administrative Code Chapter 65C - 22.

373Respondent presented the testimony of Tangela Muskin, former

381pre - kindergarten teacher at Petitioner 's facility; Susan

390Wujastyk, former child protective investigator for Respondent;

397and Patricia Richard, a supervisor in Respondent's child care

406licensing division. Respondent moved to keep the record open in

416order to take the testimony of T. Hogan, a prop erly - subpoenaed

429witness who failed to appear. The motion was granted and

439Respondent was given seven days from the date of the hearing to

451conduct the deposition of the witness and to file the transcript

462with DOAH within a reasonable time thereafter. No tr anscript of

473the testimony of the witness has been filed as of the date of

486this Recommended Order.

489Petitioner testified on her own behalf at the hearing and

499offered the testimony of Ray A. Almodovbar, owner of East/West

509Pest Control, Inc.; and Joy Campbel l, Anita Gardener, and Mary

520Peterson, employees at the facility. Petitioner's Exhibits 1

528and 2 were received into evidence.

534The hearing was recorded; however, a transcript of the

543hearing was not prepared and filed with DOAH.

551Petitioner timely filed her proposed recommended order on

559September 3, 2004. Respondent has not filed its proposals as of

570the date of this Recommended Order.

576FINDINGS OF FACT

579Based on the testimony and evidence received at the

588hearing, the following findings are made:

594A. The Par ties

5981. Respondent is the state agency responsible for

606licensing and regulating child care facilities.

6122. Respondent routinely conducts inspections of licensed

619child care facilities to determine whether facilities are in

628compliance with the applicable statutes and rules. Any problems

637found during the inspections are noted on a report, which is

648provided to the facility's operator immediately following the

656inspection. When appropriate, the inspection report provides a

664time frame within which the problem s must be corrected.

6743. Regular inspections are conducted approximately twice a

682year. More frequent inspections -- monthly or every six weeks --

693are conducted on child care facilities which have a provisional

703license rather than a standard license. Respond ent also

712conducts inspections in response to complaints it receives, and

721it has the authority to inspect child care facilities at any

732time with or without notice.

7374. Petitioner is the owner and operator of a licensed

747child care facility located at 2625 N orth Hiawasee Road,

757Orlando, Florida, which is operated under the business name:

766Today's Kids Daycare Center (hereinafter "Petitioner's facility"

773or "the facility").

7775. Petitioner has operated the child care facility at the

787above address for approximatel y five years and previously worked

797as director of another child care facility for five years.

807Petitioner has taken all required training in order to be

817licensed. As a result, she is, or should be, familiar with the

829rules regulating child care facilities.

834B. The Incident

8376. Following a complaint, Susan Wujastyk, former child

845protective investigator for Respondent, interviewed the mother

852of the child, W.P., at the child's school on March 5, 2004, in

865relation to an alleged incident which occurred at Peti tioner's

875facility on March 3, 2004. She then prepared a preliminary

885report and went to Petitioner's facility to investigate further.

894Respondent's child care licensing division was also notified and

903an inspector came to the facility, as well.

9117. On or a bout March 3, 2004, the child, W.P., a pre -

925kindergarten student at Petitioner's facility, swallowed an

932unknown solid substance while in Tangela Muskin's classroom.

940Muskin believed the substance to be rat pellets and lead W.P. to

952Petitioner, who was in anot her room, and told her of her

964suspicions.

9658. Petitioner, who had taken some nursing courses at the

975local community college, put on a rubber glove and swabbed the

986child's mouth to dislodge any other substances that might still

996be in the child's mouth. Sh e also gave him some milk, with the

1010intent to make him throw up. Petitioner then inspected the

1020vomit but found no foreign substances in it. Petitioner did not

1031call "9 - 1 - 1" for emergency assistance, nor did she call the

1045poison control center. Instead, sh e observed W.P. for a period

1056of time and sent him back to his classroom.

10659. Muskin also testified that she found the child, W.P.,

1075with a bag labeled rat pellets and claimed that Petitioner, in

1086the presence of another employee at the facility, threw the r at

1098pellets in the trash and told Muskin and the other employee not

1110to report this to anyone. This statement is not credible.

112010. Petitioner testified that she attempted to call the

1129child's mother, but could not reach her by telephone.

1138Thereafter, she w aited for the child's father to come and pick

1150him up and she told him that W.P. had swallowed something but

1162that Petitioner believed that she got all of the material out of

1174his mouth. She advised him to take the child to the emergency

1186room, but the father declined to do so. This statement appears

1197to be credible.

120011. Susan Wujastyk inspected the facility on March 5,

12092004, as part of her investigation of this matter and found two

1221pellets under a toy chest in Muskin's classroom. Wujastyk

1230thought they were rat pellets; however, that fact was never

1240verified. An examination of the child, W.P., on March 5, 2004,

1251found no evidence of ingestion of a toxic substance, and his

1262condition was found to be stable.

126812. Petitioner retains a pest control company that

1276p erforms regular services at the facility, but does not use rat

1288pellets or any form of rodent control devices. Three of

1298Petitioner's employees testified that they perform regular

1305inspections of the facility and none of them ever found rat

1316pellets or other toxic substances on the premises.

132413. Following the joint investigation, a joint report was

1333prepared and approved by Respondent's staff, and it was

1342recommended that Petitioner's license be revoked.

134814. Thereafter, on March 23, 2004, the acting district

1357director sent a letter to Petitioner informing her that her

1367license was being revoked and advised Petitioner of her right to

"1378appeal" that decision through the administrative process.

138515. Subsequently, on June 10, 2004, Petitioner was sent a

1395letter infor ming her that her license would not be renewed. The

1407basis for the denial was the same as the revocation letter.

141816. At the hearing, Patricia Richard testified that she

1427was particularly concerned that Petitioner was aware the W.P.

1436may have swallowed a tox ic and other dangerous substance and did

1448not take immediate action to report it to "9 - 1 - 1" or the poison

1464control center; and did not take it upon herself to take the

1476child to a health care professional for examination but waited

1486for the parents to arrive t o inform them of the incident.

1498Richard also testified that it was improper for Petitioner to

1508put her fingers down the child's throat in order to induce

1519vomiting. She characterized these as serious child safety

1527violations and failure to follow proper emer gency procedures.

1536These were the primary reasons she recommended that Petitioner's

1545child care license be revoked and not renewed.

155317. Petitioner, in her testimony, did not deny giving the

1563child milk and swabbing his mouth with her finger, but did deny

1575th at she stuck her fingers in his mouth in order to induce

1588vomiting.

158918. The evidence is not clear and convincing that the

1599child, W.P., swallowed a toxic or hazardous material; and it is

1610not at all clear from the evidence what it was that the child

1623swallowe d. However, it is clear that the child swallowed

1633something that was suspected to be toxic; and when this fact was

1645reported to Petitioner, she did not follow proper emergency

1654procedures and did not properly notify the child's parents

1663promptly.

166419. Petitio ner has demonstrated that her license for a

1674child care facility should not be denied or revoked but that a

1686lesser penalty should be imposed.

1691CONCLUSIONS OF LAW

169420. The Division of Administrative Hearings has

1701jurisdiction over the parties to and subject m atter of this

1712proceeding pursuant to Section 120.569 and Subsections

1719120.57(1), 120.60(5), and 402.310(2), Florida Statutes (2004). 2

172721. Respondent has the burden to prove by clear and

1737convincing evidence the grounds to revoke or deny renewal of

1747Petitio ner's child care facility license. See Department of

1756Banking and Finance v. Osborne Stern & Co. , 670 So. 2d 932, 935

1769(Fla. 1996); Coke v. Department of Children and Family Services ,

1779704 So. 2d 726 (Fla. 5th DCA 1998); Accord Marcia Edwards Family

1791Day Care Home v. Department of Children and Family Services ,

1801Case No. 02 - 784 (DOAH February 5, 2003), adopted in toto , DCF

1814Case No. 03 - 086FO (March 4, 2003); Department of Children and

1826Family Services vs. Dorothy Dempsey Family Day Care Home , Case

1836No. 02 - 1435 (DOA H August 7, 2002), adopted in toto , DCF Case

1850No. 02 - 305FO (December 1, 2002).

185722. The clear and convincing evidence standard has been

1866described as follows:

1869Clear and convincing evidence requires

1874that the evidence must be found to be

1882credible; the facts to which the witnesses

1889testify must be distinctly remembered; the

1895testimony must be precise and explicit and

1902the witnesses must be lacking in confusion

1909as to the facts in issue. The evidence must

1918be of such weight that it produces in the

1927mind of the trier of fact a firm belief or

1937conviction, without hesitancy, as to the

1943truth of the allegations sought to be

1950established.

1951Inquiry Concerning Judge Davey , 645 So. 2d 398, 404 (Fla. 1994),

1962(quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

19741983)) ( internal brackets omitted). Accord Westinghouse

1981Electric Corporation, Inc. v. Shuler Brothers, Inc. , 590 So. 2d

1991986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279 (Fla.

20041992) ("Although this standard of proof may be met where the

2016evidence is in co nflict, . . . it seems to preclude evidence

2029that is ambiguous").

2033C. Violations of the Licensing Statutes and Rules at

2042Respondent's Facility

204423. Subsection 402.310(1)(a), Florida Statutes, provides

2050that Respondent may "deny, suspend, or revoke a li cense . . .

2063for the violation of any provision of ss. 402.301 - 402.319 or

2075rules adopted thereunder."

207824. The rules adopted by Respondent to implement Sections

2087402.301 through 402.319, Florida Statutes, are codified in

2095Florida Administrative Code Chapter 65 C - 22.

210325. Wujastyk's inspection report served as a basis for

2112Respondent's March 23, 2004, revocation letter and the June 10,

21222004, denial letter. It cited the following rules/statutes,

2130which Petitioner allegedly violated: Florida Administrative

2136Code Rule 65C - 22.004(2)(d) (emergency procedures and

2144notification).

214526. Florida Administrative Code Rule 65C - 22.040(2)(d)

2153provides:

2154(d) Emergency Procedures and

2158Notification.

21591. Emergency telephone numbers, . . .

2166must be posted on or near all facility

2174tel ephones and shall be used as necessary to

2183protect the health, safety and well - being of

2192any child in day care.

21972. Custodial parents or legal guardians

2203shall be notified immediately in the event

2210of any serious illness, accident, injury or

2217emergency to th eir child and their specific

2225instructions regarding action to be taken

2231under such circumstances shall be obtained

2237and followed. . .

22413. All accidents and incidents which

2247occur at a facility must be documented and

2255shared with the custodial parent or leg al

2263guardian on the day they occur.

226927. Although Respondent offered evidence that a violation

2277of the provisions relating to failure to properly store toxic

2287substances occurred (Florida Administrative Code Rule 65C -

229520.010(1)(b)) Respondent did not include such violation on the

2304charging document or the revocation letter of March 23, 2004.

2314These letters served as the Administrative Complaint, and,

2322therefore, the alleged violation cannot be used as a basis for

2333denying the revocation or renewal of Petitioner's license.

2341Marcelin v. State Department of Business and Professional

2349Regulation, Construction Industry Licensing Board , 753 So. 2d

2357745 (Fla. 3d DCA 2000); Ghani v. Department of Health , 714

2368So. 2d 1113 (Fla. 1st DCA 1998). Although the inspector found

2379pel lets suspected of being toxic during her inspection on

2389March 5, 2004, this testimony and Muskin's are insufficient to

2399prove the charge, had the allegation been included in the

2409March 23 or June 10 letters.

241528. The evidence is clear and convincing that Pet itioner

2425failed to follow proper emergency procedures when notified that

2434W.P. may have ingested a toxic substance and failed to notify

2445the child's parent immediately when the emergency was brought to

2455her attention in violation of Florida Administrative Code

2463Rule 65C - 22.004(2)(d)1. and 2.

246929. The evidence is clear and convincing that Petitioner

2478violated the provisions of this Rule. Petitioner's explanation

2486that she believed that the child had merely bitten off a piece

2498of a styrofoam cup and swallowed a por tion of it is not

2511convincing. Petitioner's explanation that she swabbed the

2518child's mouth and gave the child some milk to induce vomiting

2529and then determined that nothing serious had happened to the

2539child, does not excuse Petitioner's inaction. Petitione r failed

2548to call "9 - 1 - 1" or poison control and failed to notify the

2563parents immediately. This is a serious violation. Petitioner

2571offered no reasonable explanation why the "9 - 1 - 1" was not called

2585or poison control was not consulted. Petitioner's statement is

2594not sufficient to excuse her neglect of this important safety

2604requirement.

2605D. Appropriate Penalty

260830. Subsection 402.310(1)(b), Florida Statutes, directs

2614Respondent to consider the following factors in determining the

2623appropriate disciplinary action for a violation of Subsection

2631402.310(1)(b), Florida Statutes:

2634(b) In determining the appropriate

2639disciplinary action to be taken for a

2646violation as provided in paragraph (a), the

2653following factors shall be considered:

26581. The severity of the viola tion,

2665including the probability that death or

2671serious harm to the health or safety of any

2680person will result or has resulted, the

2687severity of the actual or potential harm,

2694and the extent to which the provisions of

2702ss. 402.301 - 402.319 have been violated.

27092. Actions taken by the licensee to

2716correct the violation or to remedy

2722complaints.

27233. Any previous violations of the

2729licensee.

273031. Petitioner argues, inter alia , that revocation is not

2739appropriate under the circumstances of these cases and that less

2749severe sanctions (such as a fine, suspension or provisional

2758licensing) were available to Respondent.

276332. A provisional license is issued where Respondent has

2772continued concerns regarding the day care home's compliance with

2781the applicable statutes and rules. A provisional license is

2790issued in lieu of denying a license renewal or suspending or

2801revoking the day care home's license. A provisional license

2810gives the licensee an opportunity to correct the areas of

2820noncompliance, and because such homes are inspected more

2828frequently, Respondent has an opportunity to monitor the

2836licensee's progress. The issuance of a provisional license

2844would be appropriate in these cases.

2850RECOMMENDATION

2851Based upon the foregoing Findings of Fact and Conclusions

2860of Law, it is

2864RECOMMENDED that the Department of Children and Family

2872Services issue a final order as follows:

28791. Finding Petitioner guilty of violating the provisions

2887of Florida Administrative Code Rule 65C - 22.004(2)(d)1. and 2.

2897(one count each).

29002. Finding Petitio ner not guilty of violating the

2909provisions of Florida Administrative Code Rule 65C - 20.010(1)(b)

2918or similar provisions.

29213. Imposing a fine of $200, and a one - month suspension of

2934Petitioner's license, followed by the issuance of a provisional

2943license.

2944DONE AND ENTERED this 5th day of October, 2004, in

2954Tallahassee, Leon County, Florida.

2958S

2959DANIEL M. KILBRIDE

2962Administrative Law Judge

2965Division of Administrative Hearings

2969The DeSoto Building

29721230 Apalachee Parkway

2975Tallahassee, F lorida 32399 - 3060

2981(850) 488 - 9675 SUNCOM 278 - 9675

2989Fax Filing (850) 921 - 6847

2995www.doah.state.fl.us

2996Filed with the Clerk of the

3002Division of Administrative Hearings

3006this 5th day of October, 2004.

3012ENDNOTES

30131/ The "notice" by which this case was referred to the Division

3025of Administrative Hearings designated Selina Brew as Petitioner

3033and the Department of Children and Family Services as

3042Respondent. Those designations were not changed by the Clerk of

3052the Division of Administrative Hearings, as reflected in the

3061case style above. However, the facts show that this is a

3072license revocation proceeding in which the Department of

3080Children and Family Services is the party seeking the

3089affirmative relief.

30912/ All references to Sections are to the 2004 version of the

3103Florida Statutes. All references to Rules are to the current

3113version of the Florida Administrative Code.

3119COPIES FURNISHED :

3122Barry R. Nager, Esquire

3126PMB 211

31285703 Red Bug Lake Road

3133Winter Springs, Florida 32708

3137Beryl Thompson - McClary, Esquire

3142Department of Children and

3146Family Services

3148400 West Robinson Street, Suite S - 1106

3156Orlando, Florida 32801

3159Circe Zamora, Esquire

31621801 East Colonial Drive, Suite 108

3168Orlando, Florida 32803

3171Paul F. Flounlacker, Agency Clerk

3176Department of Children and

3180Family Serv ices

31831317 Winewood Boulevard

3186Building 2, Room 204B

3190Tallahassee, Florida 32399 - 0700

3195Josie Tomayo, General Counsel

3199Department of Children and

3203Family Services

32051317 Winewood Boulevard

3208Building 2, Room 204

3212Tallahassee, Florida 32399 - 0700

3217NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

3223All parties have the right to submit written exceptions within

323315 days from the date of this Recommended Order. Any exceptions

3244to this Recommended Order should be filed with the agency that

3255will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/11/2005
Proceedings: Reply to Rule to Show Cause filed.
PDF:
Date: 06/08/2005
Proceedings: Amended Final Order filed.
PDF:
Date: 06/01/2005
Proceedings: Agency Final Order
PDF:
Date: 03/21/2005
Proceedings: Motion for Rehearing and Reconsideration (filed by Respondent).
PDF:
Date: 03/11/2005
Proceedings: Agency Final Order filed.
PDF:
Date: 03/04/2005
Proceedings: Agency Final Order
PDF:
Date: 12/30/2004
Proceedings: Reply to Respondent`s Exceptions to Recommended Order filed.
PDF:
Date: 12/17/2004
Proceedings: Respondent`s Exceptions to Recommended Order filed.
PDF:
Date: 10/19/2004
Proceedings: Order. (Petitioner`s Motion for Modification of Recommended Order is denied)
PDF:
Date: 10/15/2004
Proceedings: Motion for Modification of Recommended Order filed by Petitioner.
PDF:
Date: 10/05/2004
Proceedings: Recommended Order
PDF:
Date: 10/05/2004
Proceedings: Recommended Order (hearing held August 25, 2004). CASE CLOSED.
PDF:
Date: 10/05/2004
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/27/2004
Proceedings: Notice of Appearance (filed by C. Zamora, Esquire).
PDF:
Date: 09/03/2004
Proceedings: (Proposed) Final Order filed by B. Nager.
Date: 08/25/2004
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/24/2004
Proceedings: Amended Notice of Hearing (hearing set for August 25, 2004; 9:00 a.m.; Orlando, FL; amended as to addition of consolidated case).
PDF:
Date: 08/24/2004
Proceedings: Order of Consolidation. (consolidated cases are: 04-001644 and 04-003002)
PDF:
Date: 08/23/2004
Proceedings: Order (until final agency action is completed, Petitioner`s Motion to Stay Revocation granted).
PDF:
Date: 08/11/2004
Proceedings: Motion to Stay of Revocation and Denial of License (filed by Petitioner via facsimile).
PDF:
Date: 07/12/2004
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for August 25, 2004; 9:00 a.m.; Orlando, FL).
PDF:
Date: 07/09/2004
Proceedings: Motion for Continuance (filed by Respondent via facsimile).
PDF:
Date: 06/24/2004
Proceedings: Motion to Consolidate and Stay Denial of Licensure (filed by Petitioner via facsimile).
PDF:
Date: 06/03/2004
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/03/2004
Proceedings: Notice of Hearing (hearing set for July 14, 2004; 9:00 a.m.; Orlando, FL).
PDF:
Date: 05/19/2004
Proceedings: Petitioner`s Response to Initial Order (filed via facsimile).
PDF:
Date: 05/13/2004
Proceedings: Respondent`s Response to Initial Order (filed via facsimile).
PDF:
Date: 05/05/2004
Proceedings: Initial Order.
PDF:
Date: 05/05/2004
Proceedings: Amended Petition for Administrative Hearing filed.
PDF:
Date: 05/05/2004
Proceedings: Notice of Revocation of License filed.
PDF:
Date: 05/05/2004
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
DANIEL M. KILBRIDE
Date Filed:
05/05/2004
Date Assignment:
05/05/2004
Last Docket Entry:
08/11/2005
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related Florida Statute(s) (6):