04-001995 Department Of Children And Family Services vs. Beacon Hills Preschool Status: Closed Recommended Order on Thursday, December 2, 2004.

Summary: Recommend that Respondent pay an administrative fine because of inadequate supervision, which resulted in a two-year-old child being repeatedly bitten by another child.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1995

)

BEACON HILL PRESCHOOL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Carolyn S. Holifield, held a final hearing in this case on

September 22, 2004, in Lakeland, Florida.

APPEARANCES

For Petitioner: Jack Emo ry Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

For Respondent: Jennifer Lamb, Co - Director

Beacon Hill Preschool

801 West Beacon Road

Lakeland, Fl orida 33803

STATEMENT OF THE ISSUE

The issue is whether the administrative fine levied by

Petitioner, Department of Children and Family Services

(Department), against Respondent, Beacon Hill Preschool

(Respondent, Beacon Hill or facility), is appropriat e.

PRELIMINARY STATEMENT

By letter dated May 11, 2004, the Department notified

Jennifer Lamb, co - director of Beacon Hill, that it intended to

fine Respondent $300.00 based on the results of Abuse Report

No. 2004325209. The letter alleged that due to inad equate

supervision at the facility, a child was bitten numerous times

and suffered numerous bruises in violation of Florida

Administrative Code Rule 65C - 22.001(5)(a) and (b), and Section

402.305, Florida Statutes (2003).

By letter dated May 25, 2004, Beac on Hill timely requested

a hearing on the Department’s decision to impose an

administrative fine. On June 7, 2004, the Department referred

the matter to the Division of Administrative Hearings for

assignment of an Administrative Law Judge to conduct the f inal

hearing. The hearing was originally scheduled for August 13,

2004, but it was rescheduled for September 17, 2004, by Order

granting the Department's unopposed motion for continuance.

Subsequently, the hearing was rescheduled for and heard on

Septemb er 22, 2004.

At hearing, the Department presented the testimony of Amy

Anderson, a child protection investigator, and Patricia

Hamilton, a child care licensing supervisor. The Department’s

Exhibits 1 through 3 were received into evidence. Respondent

pre sented the testimony of Julie Larson, a provider consultant,

and Patricia Cox, co - director of Beacon Hill. Respondent’s

Exhibits 1 through 4 were received into evidence. At the

Department’s request, official recognition was taken of Sections

402.305 and 402.310, Florida Statutes (2003).

No transcript of the hearing was prepared. The time for

filing p roposed recommended orders was set for ten days from the

date of the hearing. Prior to that time, upon motion by the

Department to which Respondent did not object, the time for

filing p roposed recommended orders was extended to October 25,

2004. Both parties timely filed Proposed Recommended Orders ,

which have been carefully considered in preparation of this

Recommended Order.

FINDINGS OF FACT

1. Responde nt is a licensed child care facility in

Lakeland, Florida, and is owned by Sheila Holton and Diane

DeSena. The facility’s license number is C14PO0013.

2. On February 27, 2004, a complaint was made to the

Department alleging that B.M., a two - year - old boy , had returned

home from Beacon Hill with "bruises to different parts of his

body" and that he "also had bite marks that were inflicted by

another child" at the facility.

3. Amy Anderson, a child protection investigator,

investigated the complaint. As p art of her investigation, on

the morning of February 28, 2004, Ms. Anderson went to the home

where B.M. resided. She was unable to see the child at that

time because no one was at home. However, she returned later

that day at about 5:43 p.m. and met with B.M.’s relative

caregivers, his aunt and uncle. During this visit, Ms. Anderson

saw B.M. and observed that he had various bruises on his lower

legs, right flank area, elbows, and lower back, but determined

that theses bruises were "all older in age."

4. During the course of the investigation, Ms. Anderson

met with one of the co - directors and some of the teachers at

Beacon Hill. Ms. Anderson also reviewed Respondent's incident

reports that documented the bruises, scratches, and bites that

B.M. sustained at the facility.

5. The incident reports indicate that between September 3,

2003, and February 12, 2004, B.M. was bitten eight times by

other children while at the facility. These incidents,

described in detail below, were recorded by facility staff at or

near the time of each incident.

6. On September 17, 2003, while B.M. was playing with a

toy truck, another child bit him on the left side of the face.

About one month later, on the morning of November 21, 2003,

there were two biting incidents. Firs t, while B.M. was sitting

in a wagon, B.S., a two - year - old boy, was sitting behind him and

bit B.M. on his back; less than two hours later, B.S. bit B.M.’s

hand. About two weeks later, on December 4, 2003, B.S. bit B.M.

on the palm area of his hand, immed iately after B.M. bit B.S.

7. In the two - week period between January 29, 2004, and

February 12, 2004, the biting incidents involving B.M.

continued. On the morning of January 29, 2004, B.M. was bitten

on the wrist by another child, D.M.; that afternoon, B.S. bit

B.M. again, this time on his upper forearm. On February 3,

2004, B.S. pinched and then tried to bite B.M. The next day,

February 4, 2004, B.S. bit B.M. on the right arm/hand because

B.M. had a toy that B.S. wanted. The following week, on

Febru ary 12, 2004, B.S. bit B.M. on the hand.

8. There were eight incidents at the facility in which

B.M. was bitten by other students. In seven of the eight biting

incidents, B.S. was the child who bit B.M.

9. Some time after the last biting incident, B. S., who was

described in one of the facility's incident reports as

aggressive, was dismissed from the facility.

10. In the time period between September 3, 2003, and

February 20, 2004, B.M. also sustained several bumps, scratches,

and bruises at the facil ity. 1/ These incidents, detailed below,

were documented by the facility staff at or near the time the

incidents occurred.

11. On September 3, 2003, B.M. was scratched on the left

side of his face as he was playing near the toy refrigerator,

and another c hild opened the refrigerator door. On September 5,

2003, B.M. bumped his face into another child, as the two

children accidentally ran into each other. On September 11,

2003, a child at the facility grabbed B.M. near the eye, causing

a scratch under B.M. ’s eye.

12. On October 6 and 20, 2003, B.M. was running outside

and fell and bumped his head. The October 6, 2003, incident

left a "purplish mark" on B.M.'s forehead. On October 13, 2003,

B.M. bumped his mouth on a pole while playing near the monkey

bar s.

13. In February, four incidents occurred. On February 9,

2004, B.M. was fighting another child, and the child grabbed and

scratched B.M.’s face. The next day, February 10, 2004, B.M.

was pushed into a shelf by a child from when he was trying to

take a toy; there is no indication that the push left any marks.

B.M. injured himself on February 13, 2004, after he accidentally

pinched his hand on the door of a toy car. Finally, on

February 20, 2004, B.M. fell off a play table; no injuries were

reported i n connection with this incident. 2/

14. After completing the investigation, Ms. Anderson made

the following findings, which are included in the "Summarized

Findings of Maltreatment Findings" of the Investigative Summary

and Narrative:

[B] had several bru ises all over his body

when he was seen on February 27, 2004. [B]

was bitten by another child 15 times before

the "offending" child was dismissed from the

facility; and the "daycare" admitted that a

classroom of two - year - olds was left

unattended for sever al minutes while the

teacher used the bathroom.

15. Ms. Anderson closed the Department’s official

investigation, finding some indicators of bruises on the child

victim; conditions hazardous to the health of the child due to a

much delayed diaper change; a nd inadequate supervision on the

part of Beacon Hill personnel due to leaving a classroom

unattended, even if only momentarily.

16. The child protection investigator's findings included

in the abuse report and quoted in paragraph 14 above, that B.M.

was b itten 15 times, was not established in this proceeding.

Moreover, the findings in the abuse report, described in

paragraph 15 above relating to conditions hazardous to health

and inadequate supervision due to a teacher leaving the

classroom unattended, we re not established at this proceeding.

17. Given the number of biting incidents in which B.M. was

bitten by the same child at the facility, the staff should have

taken corrective action to prevent further injury to B.M.

18. Respondent maintained the requ ired ratio of teachers

to children. Nonetheless, the fact that B.M. was bitten as

frequently as he was by the same student indicates that the

staff failed to adequately supervise the children and to take

steps to ensure that B.S. would not bite B.M. or to

substantially reduce the likelihood of that happening. The

failure of the Beacon Hill staff to take such action, even

though present, resulted in repeated and predictable injury

to B.M.

19. On the other hand, the bumps, bruises, and scratches

that B.M. received at the day care were due, in large part, to

falls and accidents involving and caused only by B.M. The three

incidents that involved deliberate actions by other children

were infrequent and were the type of common encounters that

occur with a grou p of two - year - olds, even when adequate staff is

present and supervising the children.

CONCLUSIONS OF LAW

20. The Division has jurisdiction 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

(2004).

21. The Department is the state agency responsible for

licensing, inspecting, and regulating child care facilities.

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

22. Respondent, as a licensed child care facility, is

re quired to comply with the standards established in Sections

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

implementing those provisions.

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

provides that the Department may deny, suspen d, revoke a

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

ss. 402.301 - 402.319 or rules adopted thereunder."

23. Here, the Department seeks to impose an administrative

fine. As a basis for this action, the Department alleges that

there was "inadequate supervision at the facility which resulted

in a child being bitten numerous times and suffering bruises due

to several falls." The Department further alleges that this

constitutes a violation of Florida Administrative Code Rule

65C - 22.00 1(5)(a) and (b), and Section 402.305, Florida Statutes

(2003).

24. Section 402.305, Florida Statutes (2003), requires

the Department to establish licensing standards for child care

facilities, including those that address the health and safety

of all chi ldren in child care. Pursuant to this mandate, the

Department adopted Florida Administrative Code Rule

65C - 22.001(5)(a) and (b), which provides:

(5) Supervision.

(a) Direct supervision means watching and

directing children’s activities within the

same room or designated outdoor play area

and responding to each child’s need. Child

care personnel at a facility must be

assigned to provide direct supervision to a

specific group of children and be present

with that group of children at all times.

When caring for school age children, child

care personnel shall remain responsible for

the supervision of the children in care and

capable of responding to emergencies, and

are accountable for children at all times,

which includes when children are separat ed

from their groups.

(b) During nap time, supervision means

sufficient staff in close proximity, within

sight and hearing of all the children. All

other staff to meet the required staff - to -

children ratio shall be within the same

building on the same floor and be readily

accessible and available to be summoned to

ensure the safety of the children. Nap time

supervision as described in this section,

does not include supervision of children up

to 24 months of age, who must be directly

supervised at all t imes. . . .

25. The Department has the burden to prove the allegations

against Beacon Hill by clear and convincing evidence in order to

impose an administrative fine. See Dept. of Banking & Finance

v. Osborne, Stern & Co. , 670 So. 2d 932, 935 (Fla. 199 6).

26. The Department met its burden of proof as to the

violation of Florida Administrative Code Rule 65C - 22.001(5)(a).

The evidence was clear and convincing that Respondent violated

that provision by failing to fully and directly supervise the

children present at the facility. The evidence further

established that the inadequate supervision by child care

personnel at the facility resulted in a child being bitten

numerous times.

27. In regard to the violation of Florida Administrative

Code Rule 65C - 22 .001(5)(a), the Department failed to establish

that the bruises, observed and described by the child protection

investigator as "older in age," resulted from incidents that

occurred at the facility.

28. The Department failed to meet its burden as to the

a llegation that Respondent violated Florida Administrative Code

Rule 65C - 22.001(5)(b), which relates to nap - time supervision.

There was no evidence presented on this charge.

29. In determining whether to impose a fine and what

amount is appropriate, the D epartment must consider several

factors, namely, the severity and extent of the violations,

including the actual or potential harm to the children; actions

taken by the licensee to correct the violations or remedy

complaints; and any previous violations by the license. See

§ 402.310(1)(b), Fla. Stat. (2003).

30. Having established that Respondent violated Florida

Administrative Code Rule 65C - 22.001(5)(a) and considering the

factors set forth in Subsection 402.310(1)(b), Florida Statutes

(2003), the adm inistrative fine of $300.00, recommended by the

Department, is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner, Department of Children and

Family Services, issue a final orde r imposing an administrative

fine on Respondent, Beacon Hill Preschool, in the amount of

$300.00.

DONE AND ENTERED this 2nd day of December, 2004, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrativ e Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrat ive Hearings

this 2nd day of December, 2004.

ENDNOTES

1/ In addition to the injuries sustained at the facility,

Respondent’s records state that B.M. arrived at the facility on

the morning of October 6, 2003, with a purple mark on his eyelid

and that th ere was no explanation for the mark. On the

afternoon of October 6, 2003, records reveal that a staff person

observed "a bruise wrapped around the right thigh [of B.M.],"

and "it appeared to be several days old." The facility's

records state that four mo nths later, on the morning of

February 9, 2004, B.M. arrived at the facility with a "lavender

[sic] like bruise" over his right eyelid, and no explanation was

offered. It is unknown whether these observations by facility

staff were reported to and/or inve stigated by appropriate

authorities.

2/ The incident report was signed by B.M.’s guardian, with a

notation by co - director, Patricia Cox, that "Mom didn’t seem

concerned, said he always is falling[;] too big and fat."

COPIES FURNISHED :

Jack Emory Farle y, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

Sheila Holton

Beacon Hill Preschool

801 West Beacon Street

Lakeland, Florida 33803

Paul F. Flounlacker, Agency Clerk

Department of Children and

F amily Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

N OTICE 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 i n this case.