04-002813 Kidz Kingdom Academy vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, November 29, 2004.

Summary: Amended as to paragraphs 11, 19, 22, 41, and the Recommendation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

) Case No. 04 - 2813

vs. )

)

KIDZ KINGDOM ACADEMY, )

)

Respondent. )

)

AMENDED RECOMM ENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on behalf of the

Division of Administrative Hearings (DOAH), on October 21, 2004,

in Sebring, Florida.

APPEARANCES

For Petitioner: Jac k Emory Farley, Esquire

Department of Children

and Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

For Respondent: Keith Peterson, Esquire

170 North F lorida Avenue

Bartow, Florida 33830

STATEMENT OF THE ISSUES

The issues for determination are whether Respondent

committed the acts alleged in a denial letter issued by

Petitioner, and, if so, whether Petitioner should refu se to

renew Respondent's family day care license pursuant to

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

PRELIMINARY STATEMENT

By letter dated July 14, 2004, Petitioner notified

Respondent that Petitioner proposed to deny Respondent's

applica tion to renew her license to operate a family day care

home. Respondent timely requested an administrative hearing.

At the hearing, the ALJ changed the style of the case, nunc

pro tunc , to reflect the Department of Children and Family

Services as Pe titioner and the licensee as Respondent.

Petitioner presented the testimony of four witnesses and

submitted 13 exhibits for admission into evidence. Respondent

testified and submitted no exhibits for admission into evidence.

The identity of the witness es and exhibits, and any

attendant rulings, are reported in the record of the hearing.

Neither party requested the record to be published in a

transcript. The parties timely filed their respective proposed

recommended orders (PROs) on November 1, 2004.

FINDINGS OF FACT

1. Petitioner is the agency responsible for licensing and

regulating day care homes in the state. Respondent is licensed

to operate a day care home known as Kidz Kingdom Academy at

738 Glenwood Avenue, Sebring, Florida 33876 (the f acility).

2. Petitioner inspected the facility nine times between

November 25, 2003, and July 7, 2004. The specific dates of

inspection were November 25, 2003; March 30 and 31; April 21 and

28; June 2, 11, and 15; and July 7, 2004.

3. With a few ex ceptions, Respondent committed 53

violations of applicable statutes and rules during the nine

inspections. Approximately 13 of the 53 violations are

potentially repeat violations because they involve violations of

the same statute or rule. However, they may not be repeat

violations because most of the violations arise from distinctly

different facts, i.e. , a different factual offense that violates

the same statute or rule. The remaining violations are frequent

violations but are not repeat violations bec ause they do not

violate the same statute or rule on more than one occasion

irrespective of the factual basis of the violation. Neither

party cited any statute, rule, or case law that defines a repeat

violation.

4. On July 14, 2004, Petitioner issued a denial letter

proposing to deny Respondent's application for renewal of her

license. The denial letter is the notice of charges against

Respondent.

5. The literal terms of the denial letter are ambiguous.

For example, the denial letter, in relevant part, notifies

Respondent that the nine inspections revealed "repeat

violations" of applicable statutes and rules. The notice of

charges further notifies Respondent that based on "these

violations" Petitioner proposes to deny Respondent's application

for renewal of her license.

6. The reference in the denial letter to "these

violations" arguably could be construed to mean the "repeat

violations," however the term "repeat violation" may be defined.

Alternatively, the reference to "these violations" argu ably

could be construed to mean the 13 "repeat violations" and the 40

frequent violations.

7. The denial letter adequately resolves the apparent

ambiguity by attaching and referencing a "chart setting out

specific violations" that Petitioner found during the nine

inspections. The reference to "these violations" includes all

53 violations listed on the "chart." The distinction between

"repeat violations" and "frequent violations" is not material to

the grounds stated in the denial letter for the proposed refusal

to renew Respondent's license.

8. The denial letter does not include an allegation that

Respondent has failed to pay an outstanding fine that Petitioner

previously imposed against Respondent. During testimony,

however, Petitioner's agency r epresentative testified that she

would recommend that the agency renew the license if Respondent

were to pay the fine.

9. The testimony of the agency representative is not

relevant and material to an allegation that Respondent failed to

pay an outstand ing fine. The denial letter does not include any

such allegation, and Petitioner cannot refuse to renew

Respondent's license on grounds not included in the denial

letter. Nor did the agency representative provide any written

evidence of the imposition of an unsatisfied fine.

10. The testimony of the agency representative is relevant

and material to Petitioner's argument during the hearing that

any one violation, or all of them together, threaten children

or others with serious harm within the meaning o f

Subsection 402.310(1)(b), Florida Statutes (2003). The agency

representative is the person charged with responsibility for

evaluating the severity of the alleged offenses and explicating

the evidentiary grounds for the proposed agency action. It is

ax iomatic that the agency representative would not recommend

renewal of the license upon payment of the fine if any one or

all of the 53 violations represented any harm to the public,

including children.

11. One or all of the 53 violations do not threaten harm

to children or other members of the public within the meaning of

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

Petitioner showed by clear and convincing evidence that

Respondent committed most of the 53 violations, Petitioner

failed to show by clear and convincing evidence that one or all

of the 53 violations threatened children or others with serious

harm.

12. One "repeat violation" involved missing hand towels in

the bathroom or hand towels mounted too high for children to

reach. Re spondent regularly replenished hand towels and placed

them where children could reach them.

13. Respondent failed to adequately supervise children

during nap times. Volunteers, rather than full - time staff,

sometimes supervised children. However, full - time staff members

were close by in the adjacent room.

14. Respondent repeatedly failed to comply with applicable

standards of maintenance and cleanliness. On one occasion, the

microwave oven needed to be cleaned and sanitized.

15. During one inspect ion, some ceiling tiles in the

facility were "coming down and showed evidence of water damage,"

and there was some evidence of "rodent or vermin infestation."

Respondent corrected both violations in a timely manner.

16. On March 30 and June 11, 2004, li ghting at the

facility was inadequate. Respondent adequately corrected the

violation during each inspection by turning on more lights and

opening the blinds during nap time.

17. Gaps in a wood fence enclosing the play area were too

large. However, a ch ain - link fence immediately inside the

wooden fence prevented a child from exiting through the gaps in

the wooden fence.

18. During two inspections, the facility placed soiled

diapers in an open container. The facility corrected both

violations at the ti me of the inspection by covering the

containers or taking them outside.

19. On November 25, 2003, the facility left some

electrical plugs in the music room uncovered. The inspection

was a preliminary inspection, and the facility corrected the

problem be fore any follow - up inspection. No follow - up

inspections cite Respondent for a similar violation.

20. On March 30, 2004, the facility used highchairs that

had been recalled. The facility immediately corrected the

problem by taking the recalled highchair s out of service and

replacing them with new high chairs not subject to a recall.

21. On March 30, 2004, a wooden climber for a slide in the

playground was wobbly. A "slat was not secured to the railing."

In addition, a latch on a toddler swing did not function

properly. Respondent corrected both violations at the time of

the inspection.

22. On June 11, 2004, a swing and a rope ladder were

broken. A fence was beginning to sag. Respondent corrected

both violations before a follow - up inspection.

23. On March 30 and 31, 2004, Respondent failed to

maintain signed parental authorizations for the facility to

administer prescription medications to children at the facility.

Respondent corrected the deficiencies immediately by requiring

the parents to rem ove the medications from the facility because

the parents failed to comply with the facility's request for a

signed authorization form.

24. Petitioner alleged, but did not show by clear and

convincing evidence, that Respondent failed to give medication s

to children as prescribed. Petitioner submitted no evidence

that Respondent ever administered the specific medication at

issue contrary to the prescribed dosage or without a signed

authorization.

25. On November 11, 2003, and June 11, 2004, Respondent

failed to properly dispose of a bottle after use by leaving the

bottle in an infant room after use. Respondent corrected the

violation at the time of inspection by moving the bottle to the

kitchen where Respondent properly stored the other bottles for

su bsequent cleaning. In addition, Respondent failed to properly

refrigerate baby formula supplied to the facility for one of the

infants in Respondent's care. Petitioner failed to show how

long the formula had not been refrigerated. Respondent

corrected t hese deficiencies at the time of inspection.

26. On November 25, 2003, and June 2, 2004, Respondent

failed to maintain immunization records for some of the children

at the facility. Immunization records for other children had

expired. The parents had n ot returned the completed

immunization records to the facility by the deadline of

December 5, 2003.

27. Respondent failed to maintain health examination

records for 14 students. Petitioner did not show that this was

an ongoing or uncorrected violation .

28. From November 25, 2003, through June 2, 2004,

Respondent failed to maintain forms required to be signed by

employees that the employees understood the requirements for

reporting child abuse and neglect. On June 2, 2004, Respondent

failed to mainta in on file a signed affidavit of good moral

character for an employee. The insufficiencies could have been

corrected by obtaining the signature of the respective facility

employees.

29. From November 25, 2003, through June 11, 2004,

Respondent failed to maintain required records showing that

background screening for facility employees had been completed.

On June 11, 2004, Respondent had a fingerprint card on file for

an employee, but had not submitted the card to the Department of

Law Enforcement with in five working days of the first day of

employment. Respondent failed to maintain documentation that

volunteers at the facility were in fact volunteers. Petitioner

submitted no evidence of which volunteers or employees were

involved, the beginning date for employment or volunteer

service, or whether the individuals continued to be volunteer or

be employed at the time of the alleged deficiency.

30. Petitioner alleges that Respondent failed to maintain

required attendance records on June 2, 2004, for a field trip.

The inspector did not reconcile attendance lists from the staff

managing the field trip with those maintained by staff at the

facility. The two lists, together, may or may not have

accounted for all of the children either at the facility or on

the field trip. Respondent corrected the alleged deficiency at

the time of the inspection. However, Respondent failed to

obtain required parent permission slips for some of the students

and failed to inform some parents that their children would be

on a field trip.

31. Respondent failed to maintain required attendance

records from April 21 through June 11, 2004. On June 11, 2004,

Respondent failed to maintain proper attendance records.

Approximately 16 children attended the facility on that date,

but the parents of only 12 children actually signed the

attendance sheet.

32. On November 25, 2003, Respondent failed to maintain a

written discipline policy and failed to maintain properly signed

student discipline forms. On March 30, 2004, Respond ent failed

to maintain proper ratios of staff to children. On July 7,

2004, Respondent left toxic or hazardous cleaning materials

exposed to children. On June 2, 2004, Respondent failed to

maintain staff with adequate first aid and CPR training. On

June 2, 2004, Respondent failed to post the menu and failed to

adequately implement single service items.

33. Petitioner conducted re - inspections on March 31,

April 28, and June 11 and 15, 2004. Of the 53 alleged

violations, Petitioner cited only 13 on re - i nspection. However,

only four of the 13 were uncorrected deficiencies. The

remaining nine were deficiencies cited for the first time on re -

inspection. The four deficiencies cited as uncorrected on re -

inspection were the failure to maintain attendance an d

background screening record reports and the failure to maintain

a clean facility in good repair.

34. As previously stated, none of the violations were

severe within the meaning of Subsection 402.310(1)(b), Florida

Statutes (2003). The violations did not result in death or

serious harm to a child. There was no evidence that the

violations created a probability, rather than a possibility, of

death or serious harm to a child. The agency representative

would have approved the application for renew al but for an

unpaid fine by Respondent. It is axiomatic that an agency

representative would not ignore severe deficiencies in exchange

for the payment of a fine.

35. The licensee corrected all of the alleged violations

except those pertaining to at tendance records, a clean facility,

and background screening record reports. Petitioner failed to

show by clear and convincing evidence that the missing or

incomplete background screening record reports pertained to

specific employees who were currently o n staff at the facility.

The evidence was vague and lacked the specificity required in a

license discipline proceeding.

36. Petitioner intends the denial letter to be an

administrative complaint. The Administrative Complaint does not

allege that the licensee has any previous violations.

CONCLUSIONS OF LAW

37. DOAH has jurisdiction over the parties and subject

matter of this case. §§ 120.569 and 120.57(1), Fla. Stat.

(2003). DOAH provided the parties with adequate notice of the

administrati ve hearing.

38. Petitioner has the burden of proof in this proceeding.

Department of Banking and Finance, Division of Securities and

Investor Protection vs. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996). Petitioner must prove by clear and

c onvincing evidence the allegations in the denial letter and the

reasonableness of the proposed penalty.

39. Petitioner proved that Respondent committed the acts

alleged in the denial letter other than those identified in this

Recommended Order. However , Petitioner failed to show that

revocation, in the form of a refusal to renew a license, is an

appropriate penalty.

40. In relevant part, Subsection 402.310(1)(a), Florida

Statutes (2003), authorizes Petitioner to revoke Respondent's

license or admi nister a fine for the violations that Respondent

committed. Petitioner did not show by clear and convincing

evidence that any of the deficiencies committed by Respondent

were severe within the meaning of Subsection 402.310(1)(b)1.,

Florida Statutes (2003) . Therefore, the appropriate penalty

should not exceed a fine of $100 a day for the violations

committed by Respondent.

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

prescribes the factors to be considered in formulating a

penalty. Several m itigating factors support a fine of less

than $100 a day for the 53 alleged violations. Petitioner

submitted no evidence that Respondent has any previous

violations within the meaning of Subsection 402.310(1)(b)3.,

Florida Statutes (2003). Moreover, Res pondent corrected all but

four of the alleged violations before re - inspection.

42. The four uncorrected violations occurred for 16 days.

In addition, Respondent committed "repeat violations" on 13

days. Petitioner submitted no evidence of aggravating factors.

Therefore, a fine of $2,900 is authorized by Subsection

402.310(1)(a), Florida Statutes (2003), and is reasonable under

the facts and circumstances of this case.

43. Neither DOAH nor Petitioner may find Respondent guilty

of facts or violatio ns not specifically alleged in the denial

letter, as those allegations are incorporated by reference in

the chart attached to the denial letter. See Cottrill v.

Department of Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA

1996) (facts not alleged in the A dministrative Complaint). See

also B.D.M. Financial Corporation v. Department of Business and

Professional Regulation , 698 So. 2d 1359, 1362 (Fla. 1st DCA

1997) (violations not alleged in the Administrative Complaint).

To do so would negate the right to an administrative hearing to

contest the violations alleged in the denial letter, and it

would eviscerate fundamental principles of due process.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED tha t Petitioner enter a final order granting

Respondent's application for renewal of her license, finding

Respondent guilty of committing those acts found to be

violations in this Amended Recommended Order, and imposing an

administrative fine of $2,900.

DO NE AND ENTERED this 29th day of November, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 29th day of November, 2004.

COPIES FURNISHED :

Jack Emory Farley, Esquire

Department of Children and

Family Services

4720 Old Highway 37

Lakeland, Florida 33813 - 2030

Keith Peterson, Esquire

170 North Florida Avenue

Bartow, Florida 33830

Paul F. Flounlacker, Agency Clerk

Department of Children and

Family Services

1317 Winewood Bouleva rd

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

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.