04-001832 A Blessed Child Preschool Daycare vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, August 16, 2004.

Summary: Petitioner, that allowed children to play in an unfenced outdoor play area, violated Respondent`s rule and should be fined. The $250 fine sought by Respondent is excessive, based upon the mitigating circumstances. Recommend $100 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A BLESSED CHILD PRESCHOOL )

DAYCARE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1832

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on July 20, 2004, in Lake Wales, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Pet itioner: James Loydd

A Blessed Child Preschool Daycare

209 East Sessoms Avenue

Lake Wales, Florida 33853

For Respondent: Jack E. Farley, Esquire

Department of Children and Family

Services

4720 Old Highway 37

La keland, Florida 33813 - 2030

STATEMENT OF THE ISSUES

The issues are whether the Department of Children and

Family Services should impose an administrative fine on

Petitioner because children at Petitioner’s child care facility

were playing in an area that did not comply with the

Department’s rule governing outdoor play areas, and if so, how

much should the fine be.

PRELIMINARY STATEMENT

By certified letter dated April 9, 2004, the Department of

Children and Family Services (Department) informed Petitioner

that it intended to impose a $250.00 administrative fine on

Petitioner based upon the results of the Department’s inspection

of Petitioner’s child care facility on March 11, 2004. The

letter alleged that on that date, the Department’s inspector

observed c hildren playing at Petitioner’s facility in an area

that did not comply with the Department’s rule governing outdoor

play areas.

By letter dated April 28, 2004, Petitioner timely requested

a hearing on the Department’s decision to impose an

administrative fine. The Department referred the matter to the

Division of Administrative Hearings (Division) on May 20, 2004,

for the assignment of an administrative law judge to conduct the

hearing requested by Petitioner. The hearing was originally

scheduled for Jul y 19, 2004, but it was subsequently rescheduled

for July 20, 2004, upon the Department’s unopposed motion.

At the hearing, Petitioner presented the testimony of

Stephanie Pride, Vivian Loydd, and James Loydd. Petitioner's

Exhibits P1 through P3, P4 - A thro ugh P4 - C, and P5 - A through P5 - G

were received into evidence. The Department presented the

testimony of Glynnis Green and Patricia Hamilton. The

Department’s Exhibits A and B were received into evidence. At

the Department’s request, official recognition was taken of

Sections 402.305 and 402.310, Florida Statutes (2003), 1 and

Florida Administrative Code Rule Chapter 65C - 22.

No Transcript of the hearing was filed. The Department

requested and the parties were given 15 days from the date of

the hearing to f ile their proposed recommended orders (PROs).

The Department filed its PRO on August 2, 2004, and Petitioner

filed a letter summarizing its position on August 4, 2004. The

parties' post - hearing filings were given due consideration by

the undersigned in p reparing this Recommended Order.

FINDINGS OF FACT

1. Petitioner operates a licensed child care facility

located in Lake Wales. The facility’s license number is

C14PO0223.

2. Petitioner’s facility, which is owned by James and

Vivian Loydd, has a licens ed capacity of 25 children. The

facility only serves “school age” children, ages five through

12. The Loydds own another child care facility in Lake Wales

that serves younger children.

3. Petitioner’s facility is operated on the grounds of a

church loca ted on the northeast corner of Scenic Highway and

Sessoms Avenue.

4. Scenic Highway is a busy two - lane commercial road that

is used as a “cut - through” to get to a main highway. The posted

speed limit on Scenic Highway is 35 miles per hour.

5. Sessoms Av enue is a residential street. It is not

heavily - traveled.

6. The church grounds include a fellowship hall,

classrooms, and an office in one building and a worship

auditorium in another building. 2 The church also includes a

fenced playground area adjacen t to the office. 3

7. The worship auditorium building and the fellowship

hall/classroom/office building are separated by a paved parking

area, which is approximately 50 feet wide and 160 feet long.

The parking area includes approximately six handicapped p arking

spaces. 4

8. Access to the handicapped parking area is provided by a

narrow, one - way driveway off of Sessoms Avenue. The driveway

runs through a covered breezeway between the church office and

the worship auditorium. 5

9. The main parking area for the church is located

adjacent to Scenic Highway. 6 That parking area can be accessed

from either Scenic Highway or Sessoms Avenue. The Sessoms

Avenue entrance to the main parking area is not the same

driveway that is used to access the handicapped parkin g area.

10. There are no barriers between the handicapped parking

area and the main parking area or Scenic Highway; however, the

handicapped parking area is more than 90 feet from Scenic

Highway.

11. On March 11, 2004, the Department conducted a routi ne

investigation of Petitioner’s facility. The inspection was

conducted by Glynnis Green.

12. Ms. Green arrived at Petitioner’s facility at

approximately 3:00 p.m. She turned into the church grounds by

way of the driveway off Sessoms Avenue. Ms. Green was driving

very slowly along the driveway through the breezeway because she

was unfamiliar with the layout of the facility.

13. As Ms. Green was driving through the breezeway, she

saw a child chasing after a ball that had rolled across the path

of her car. Ms. Green stopped her car and the child ran in

front of her car, retrieved the ball, and then ran back in front

of her car to the handicapped parking area where he was playing

with other children. 7

14. Ms. Green was only driving three to five miles per

hour at the time she first saw the child, and she was able to

stop her car in plenty of time to avoid hitting the child. The

child crossed approximately ten to 15 feet in front of

Ms. Green’s car.

15. The child who crossed in front of Ms. Green’s c ar was

playing ball with seven other children in the handicapped

parking area. 8 Another three children were sitting on the step

outside of the classroom building with Stephanie Pride, the

teacher who was supervising the children at the time. 9

16. A tota l of 11 children were at Petitioner’s facility

on the day of Ms. Green’s investigation. All of the children

were “school age,” and all of the children were outside with

Ms. Pride.

17. Ms. Pride was the only teacher at the facility at the

time. The othe r teacher, “Miss Tina,” left approximately 10

minutes before Ms. Green arrived. The facility’s director was

on maternity leave, and the Loydds were at their other child

care facility.

18. Ms. Pride and the Loydds acknowledged at the hearing

that it was inappropriate for the children to be playing outside

in an unfenced area with only one supervisor. They acknowledged

their unfamiliarity with the Department’s rule requiring two

supervisors under such circumstances, and they accepted

responsibility for th eir lack of familiarity.

19. After Ms. Green parked her car, she directed Ms. Pride

to take the children inside. Ms. Pride did so, and Ms. Green

commenced her inspection of Petitioner’s facility.

20. After completing her inspection, Ms. Green filled o ut

the Department’s standard inspection checklist form. On the

form, Ms. Green cited Petitioner’s facility for six violations, 10

including a violation of Florida Administrative Code Rule 65C -

22.002(4)(e) for the children playing in the unfenced

handicappe d parking area. Ms. Green described that violation on

the checklist as follows:

The center did not have fencing for the

outdoor play area that was safe from

traffic. They were allowing the children to

play in the parking lot and a child was

witnessed run ning after a ball into the path

of a car entering the parking lot. The

center did not have an additional staff

member present in the unfenced outdoor play

area used for school - age children. The

center did not have written authorization

from the departmen t to operate without a

fence.

21. All of the violations cited by Ms. Green were

corrected at the time of the inspection or within the time set

by Ms. Green for her follow - up inspection. The violation

related to the children playing in the handicapped p arking area

was corrected at the time of the inspection by Ms. Pride taking

the children inside.

22. Ms. Green explained the results of her inspection to

Ms. Pride and the Loydds, who had come to the facility at some

point during Ms. Green’s inspection. She did not indicate what

action the Department might take based upon the cited

violations, because she did not know.

23. Mr. Loydd asked Ms. Green what could be done to remedy

the violation related to the outdoor play area. Ms. Green

suggested that th e facility could erect barricades around the

handicapped parking area while the children were playing in that

area in order to keep the children in and the cars out.

24. On March 12, 2004, the day after Ms. Green’s

inspection, Mr. Loydd purchased $272.63 of materials to

implement Ms. Green’s suggestion. The materials included four

orange traffic cones, four orange posts with reflectors on top,

and two rolls of four - foot high orange plastic fencing. 11

25. Mr. Loydd planned to place two cones on the driv eway

in front of the breezeway and two cones at the end of the

handicapped parking area. He also planned to place two posts at

each end of the handicapped parking area and then run fencing

between each set of posts in order to enclose the handicapped

park ing area. 12

26. The cones, posts, and fencing will be set out when the

children are playing in the handicapped parking area, and will

be removed when the children are playing inside.

27. After Ms. Green returned to her office, she provided

the completed inspection checklist to her supervisor,

Patricia Hamilton, for further action.

28. After reviewing the checklist and discussing the

matter with Ms. Green, Ms. Hamilton determined that a fine

should be levied against Petitioner based upon the children's

p laying in the unfenced handicapped parking area. Ms. Hamilton

considered the violation to be serious because the children

could have been seriously injured if they were struck by a car

while playing in the unfenced parking area.

29. Ms. Hamilton determ ined that a $250.00 fine would be

appropriate under the circumstances. She testified that the

“objective” of the fine was to impress upon Petitioner the

seriousness of the violation so as to ensure that it would not

happen again.

30. The proposed $250.0 0 fine was based solely on the

violation related to the children playing in the handicapped

parking area. Ms. Green and Ms. Hamilton each testified that

the other violations had been promptly resolved to the

Department’s satisfaction and that the proposed fine was not

based upon those violations. 13

31. A certified letter was sent to Petitioner on April 9,

2004, under Ms. Hamilton’s signature advising Petitioner of the

Department’s intent to impose a $250.00 fine. The letter

advised Petitioner of its righ t to request a hearing on the

Department’s intended action.

32. The Loydds responded to the Department’s letter

through a letter dated April 28, 2004. In that letter, the

Loydds requested a hearing, and also stated that they had

“purchased cones and barr ier protection at the cost of $275.00

to keep traffic out of the drive thru so we are requesting the

department to rescind the fine and to grant the use of the drive

through as part of the play area.”

33. Ms. Hamilton did not take any action on the Loydd s'

request that they be allowed to use the handicapped parking area

as an outdoor play area. She did not recall seeing the Loydds’

letter, and because the letter requested a hearing on the

proposed fine, it is likely that Ms. Hamilton’s assistant sent

it directly to Tallahassee for processing.

34. The Loydds did not follow up with Ms. Hamilton

regarding their request for approval of their use of the

handicapped parking area as an outdoor play area. Mr. Loydd

spoke to another Department inspector, Vicki R ichmond, about

using the cones and fencing to enclose the handicapped parking

area, but Ms. Richmond told him that she did not think that the

Department would approve that plan.

35. The Department and the Loydds are equally at fault for

the Department’s f ailure to take prompt action on the request

for approval of Mr. Loydd’s proposal to use the handicapped

parking area as an outdoor play area. The Department is at

fault because, as it acknowledged in its PRO (at pages 7 - 8), it

did not closely review the A pril 28, 2004, letter from the

Loydds that clearly requested approval of that area as an

outdoor play area, and the Loydds are at fault for not formally

following up with Ms. Hamilton after she failed to respond to

the letter and/or after Mr. Loydd receive d conflicting

information from Ms. Green and Ms. Richmond regarding the

viability of his proposal.

36. The decision to approve an unfenced outdoor play area

is made by Ms. Hamilton and a “team” of inspectors and

supervisors. It typically takes approximat ely one week for such

a decision to be made once a formal request is received. 14

37. Petitioner has not used the handicapped parking area

as an outdoor play area since Ms. Green’s inspection. No

children have been observed playing in that area during the

Department’s follow - up inspections.

38. None of the violations cited by Ms. Green were repeat

violations.

39. Petitioner has not been cited for any previous

violations by the Department relating to the safety of children

at its facility.

CONCLUSIONS O F LAW

40. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Sections 120.569,

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

41. The Department is the state agency responsible for

licensing, inspecting, an d regulating child care facilities.

See §§ 402.301 - .319, Fla. Stat.

42. Section 402.310(1)(a), Florida Statutes, provides that

the Department may deny, suspend, or revoke a license, or impose

an administrative fine “for the violation of ss. 402.301 - 402. 319

or rules adopted thereunder.”

43. The Department is not seeking to suspend or revoke

Petitioner’s license, and such action would clearly be

inappropriate under the circumstances of this case. The

Department is only seeking to impose an administrativ e fine.

44. Florida Administrative Code Rule 65C - 22.002(4)(e),

which was adopted by the Department under the authority of

Sections 402.301 and 402.305, Florida Statutes, provides:

(e) The outdoor play area shall have and

maintain safe and adequate fen cing or walls

a minimum of four (4) feet in height.

Fencing, including gates, must be continuous

and shall not have gaps that would allow

children to exit the outdoor play area. The

base of the fence must remain at ground

level, free from erosion or buil d - up, to

prevent inside or outside access by children

or animals. A fence is not required if all

of the following conditions are met:

1. The children using the play area are

in five - year - old kindergarten and grades one

or above;

2. In addition to the established staff -

to - children ratios, for the purpose of

safety, an additional staff member is

present, during all times of outdoor

activities, to assist in providing

supervision;

3. The outdoor play area is not located

adjacent to a congested, hea vily trafficked

location or near any major intersections,

crowded business areas, or water hazards;

and

4. The department or the local licensing

agency has provided written authorization to

the program to operate without a fence.

45. The Department has the burden to prove the allegations

against Petitioner by clear and convincing evidence in order to

impose an administrative fine on Petitioner. See Dept. of

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

(Fla. 1996).

46. The Departme nt met its burden of proof. The evidence

was clear and convincing that Petitioner violated Florida

Administrative Code Rule 65C - 22.004(4)(e) by allowing children

at its facility to play in an unfenced outdoor play area that

had not been approved by the De partment and that was being

supervised by only one teacher. Ms. Pride’s testimony was

consistent with Ms. Green’s testimony regarding the material

facts related to the children playing in the handicapped parking

area and the child running in front of Ms. Green’s car; and, the

Loydds and Ms. Pride candidly acknowledged at the hearing that

the facility was in violation of the rule at the time of

Ms. Green’s inspection because it did not have approval from the

Department to use an outdoor play area without a fence as

required by Florida Administrative Code Rule 65C - 22.002(4)(e)4.,

and because the additional staff member required by Florida

Administrative Code Rule 65C - 22.002(4)(e)2. was not present.

47. An administrative fine imposed by the Department is

typ ically limited to $100.00 unless the violation “ could or does

cause death or serious harm” whereupon the Department may impose

a fine “not to exceed $500.” See § 402.310(1)(a), Fla. Stat.

(emphasis supplied).

48. Allowing children to play in a parking lot that is

accessible to cars (even cars traveling at a slow rate of speed)

certainly “could” cause serious harm or death to a child, which

is all that Section 402.310(1)(a), Florida Statutes, requires

the Department to establish in order to impose the hi gher fine.

Even though the relative inaccessibility of the handicapped

parking area and its distance from Scenic Highway make it less

likely that a child would be hit by a car while playing in that

area, the possibility certainly exists as shown by the ch ild

chasing a ball in front of Ms. Green’s car. Accordingly, the

Department may impose a fine of up to $500.00 in this case.

49. In determining the amount of the fine within the

statutory range, the Department must consider the following

factors:

1. T he 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 - 402.31 9 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee.

§ 402.310(1)(b), Fla. Stat. (emphasis supplied).

50. The $250.00 fine proposed by the Department i s not

reasonable under the circumstances of this case; each of the

factors in Section 402.310(1)(b), Florida Statutes, weighs in

favor of a lower fine.

51. First, although the children playing in the unfenced

handicapped parking area “could” have been se riously injured if

they were hit by a car driving through that area or along Scenic

Highway, the “probability” (which is the word used in Section

402.310(1)(b)1., Florida Statutes, for purposes of determining

the amount of the fine 15 ) of that happening is low. A car

driving through the handicapped parking area would be traveling

slowly because of the narrow driveway and breezeway that provides

the primary access to the parking area and, as a result, the car

would likely be able to avoid any children playin g in that area

as Ms. Green was able to do. Moreover, it is improbable that a

child playing in the handicapped parking area would run into

Scenic Highway chasing a ball or otherwise because that road is

more than 90 feet away from the handicapped parking area.

52. Second, Petitioner took prompt action to correct the

violation cited by the Department. See § 402.310(1)(b)2., Fla.

Stat. The children were immediately taken inside by Ms. Pride,

and the facility no longer allows the children to play in the

h andicapped parking area; and, Mr. Loydd purchased approximately

$275.00 of safety materials the day after Ms. Green’s inspection

pursuant to her suggestion as to how the handicapped parking

area might be approved for use as an outdoor play area. Whether

o r not that approval is ultimately given by the Department,

Mr. Loydd’s prompt action in response to Ms. Green’s suggestion

reflects Petitioner’s good faith efforts to correct the

violation cited by the Department and ensure the safety of the

children at it s facility. Indeed, the Department stated in its

PRO (at page 7) that "[c]ertainly, the Loydds are to be

commended for their quick pursuit of a remedy."

53. Third, Petitioner’s facility has not been previously

cited for violations related to the use of the handicapped

parking area as an outdoor play area. See § 402.310(1)(b)3.,

Fla. Stat. Indeed, the evidence fails to establish that

Petitioner has been previously cited for violations of any

Department rule relating to the safety of children at its

faci lity.

54. In light of these mitigating circumstances, a $100.00

fine is appropriate in this case. A fine in that amount,

coupled with Petitioner’s expenditure of approximately $275.00

to enclose the handicapped parking area while it is being used

by the children as a play area, is sufficient to achieve

Ms. Hamilton’s “objective” of impressing the significance of the

violation on Petitioner so that the violation does not happen

again and the children at Petitioner's facility remain safe.

55. An administr ative fine of $100.00 is also more

proportionate to the fines levied by the Department in recent

cases, which involved a larger number and/or repeat violations.

For example, in Department of Children and Family Services v.

Just Little People, Inc. , Case N o. 04 - 1602 (DOAH July 9, 2004),

the Department sought and the Administrative Law Judge (ALJ)

recommended the imposition of a $200.00 fine for six violations,

including two serious violations ($50.00 each) and four repeat

violations ($25.00 each), one of wh ich was that “the outdoor

play space was not adequately enclosed - fencing was not safely

secured"; and, in Department of Children and Family Services v.

Best Academy , Case No. 04 - 1321 (DOAH June 10, 2004), the

Department sought and the ALJ recommended the i mposition of a

$150.00 fine for a repeat violation of the staffing - ratio

requirement for infants.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department issue a final order

imposing an admini strative fine on Petitioner in the amount of

$100.00.

DONE AND ENTERED this 16th day of August, 2004, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hea rings

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 16th day of August, 2004 .

ENDNOTES

1/ All statutory references in this Recommended Order are to

the 2003 version of the Florida Statutes.

2/ The layout of the church buildings is shown on Exhibit P1.

3/ Exhibit P5 - G is a photograph of the fenced playground. The

playground equipment that can be seen in the photograph was

added in response to criticisms raised in the Department’s

inspection regarding the age - appropriateness of the equipment on

the playground. Those criticisms were unrelated to the

violation of the Department 's rule governing outdoor play areas,

which was the sole basis of the administrative fine imposed by

the Department in this case.

4/ Exhibit P5 - E is a photograph of the handicapped parking

area.

5/ Exhibit P5 - A is a photograph showing the driveway acce ss off

Sessoms Avenue. Exhibits P5 - B and P5 - C are photographs showing

the narrowness of the driveway through the breezeway. Exhibit

P5 - D is a photograph showing how the driveway turns into the

handicapped parking area.

6/ Exhibit P5 - F is a photograph o f the main parking area.

Scenic Highway is visible on the left side of the photograph,

and a portion of the handicapped parking area is visible in the

upper right part of the photograph between the two church

buildings.

7/ The approximate location where Ms. Green’s car was located

when the child ran in front of her path is marked with a “B” on

Exhibit P1.

8/ The approximate location where the children were playing is

marked with a “C” on Exhibit P1.

9/ The approximate location where Ms. Pride was sit ting while

she was supervising the children is marked with a “D” on Exhibit

P1.

10/ The other violations, which are no longer at issue, were a

sticky floor which needed to be cleaned, keeping bleach and

bleach water in an area accessible to the children, keeping

bleach water in bottle that was not properly labeled, an absence

of documentation showing that monthly fire drills had been

completed, and equipment on the fenced playground that was not

age/developmentally appropriate.

11/ Exhibits P4 - A through P4 - C are photographs of the materials

purchased by Mr. Loydd.

12/ The approximate locations where the cones will be placed

are marked with a “1” and “2” on Exhibit P1. The approximate

locations where the posts and fencing will be located is marked

with a “2” and “3” and dashed lines on Exhibit P1.

13/ Even without this testimony, the Department could not have

taken disciplinary action against Petitioner in this proceeding

based upon the other violations because the Department’s

April 9, 2004, letter t o Petitioner, which constitutes the

administrative complaint in this matter, only made reference to

the alleged violation of the Department’s outdoor play area

rule. See , e.g. , Cotrill v. Department of Insurance , 685 So. 2d

1371, 1372 (Fla. 1st DCA 1996) (agency may not find a licensee

guilty of acts not alleged in the administrative complaint).

14/ The approval of Mr. Loydd’s plan to enclose the handicapped

play area with the cones, posts, and fencing is something that

will occur outside of this proceed ing. Mr. Loydd and

Ms. Hamilton were urged at the hearing to coordinate with each

other regarding the formal submittal of the proposal to the

Department for its prompt consideration.

15/ Accord K.P. v. Dept. of Children & Family Servs. , Case No.

03 - 3464, at 14 (DOAH Jan. 27, 2004)("The severity of the

violation is to be determined by considering the probably [sic]

of death or serious harm to any person. 'Probability' is

defined as 'the quality of condition of being probable, the

likelihood o f reoccurrence of this specific event.'"), adopted

in pertinent part , Order No. DCF - 04 - 089 (DCF May 7, 2004).

COPIES FURNISHED :

Jerry Regier, Secretary

Department of Children and

Family Services

Building 1, Room 202

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

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

Bu ilding 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

James Loydd

209 East Sessoms Avenue

Lake Wales, Florida 33853

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 Fi nal Order in this case.