04-003002 Selina Brew vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, October 5, 2004.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SELINA BREW, )

)

Petitioner, )

)

vs. ) Case Nos. 04 - 1644

) 04 - 3002

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECO MMENDED ORDER

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

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

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Barry R. Nager, Esquire

PMB 211

5703 Red Bug Lake Road

Winter Springs, Florida 32708

Circe Zamora, Esquire

1801 East Colonial Drive, Suite 108

Orlando, Florida 32803

For Respondent: Beryl Thompson - McClary, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner's license to operate a day care center

should be suspended or revoked.

Whether Petitioner's license to operate a day care center

should be renewed.

PRE LIMINARY STATEMENT

By certified letter dated March 23, 2004, Respondent,

Department of Children and Family Services, informed Petitioner,

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

being revoked. The proposed revocation was based upon the

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

March 5, 2004, which alleged noncompliance with applicable

licensing statutes and rules.

Petitioner disputed the facts underlying Respondent's

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

timely requested a formal administrative hearing. On May 4,

2004, Respondent referred the matter to the Division of

Administrative Hearings (DOAH) for the assignment of an

Administrative Law Judge to conduct the hearing requested by

P etitioner.

Subsequently, on June 10, 2004, Respondent notified

Petitioner that her application for renewal of her license to

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

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

2004 , letter. Petitioner denied the allegations, and this

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

agreement of the parties, these two cases were consolidated.

Following discovery, the final hearing was scheduled for

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

recognition was taken of Sections 402.26 - 402.319, Florida

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

Respondent presented the testimony of Tangela Muskin, former

pre - kindergarten teacher at Petitioner 's facility; Susan

Wujastyk, former child protective investigator for Respondent;

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

licensing division. Respondent moved to keep the record open in

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

witness who failed to appear. The motion was granted and

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

conduct the deposition of the witness and to file the transcript

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

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

this Recommended Order.

Petitioner testified on her own behalf at the hearing and

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

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

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

and 2 were received into evidence.

The hearing was recorded; however, a transcript of the

hearing was not prepared and filed with DOAH.

Petitioner timely filed her proposed recommended order on

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

the date of this Recommended Order.

FINDINGS OF FACT

Based on the testimony and evidence received at the

hearing, the following findings are made:

A. The Par ties

1. Respondent is the state agency responsible for

licensing and regulating child care facilities.

2. Respondent routinely conducts inspections of licensed

child care facilities to determine whether facilities are in

compliance with the applicable statutes and rules. Any problems

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

provided to the facility's operator immediately following the

inspection. When appropriate, the inspection report provides a

time frame within which the problem s must be corrected.

3. Regular inspections are conducted approximately twice a

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

are conducted on child care facilities which have a provisional

license rather than a standard license. Respond ent also

conducts inspections in response to complaints it receives, and

it has the authority to inspect child care facilities at any

time with or without notice.

4. Petitioner is the owner and operator of a licensed

child care facility located at 2625 N orth Hiawasee Road,

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

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

or "the facility").

5. Petitioner has operated the child care facility at the

above address for approximatel y five years and previously worked

as director of another child care facility for five years.

Petitioner has taken all required training in order to be

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

rules regulating child care facilities.

B. The Incident

6. Following a complaint, Susan Wujastyk, former child

protective investigator for Respondent, interviewed the mother

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

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

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

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

Respondent's child care licensing division was also notified and

an inspector came to the facility, as well.

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

kindergarten student at Petitioner's facility, swallowed an

unknown solid substance while in Tangela Muskin's classroom.

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

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

suspicions.

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

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

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

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

intent to make him throw up. Petitioner then inspected the

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

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

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

of time and sent him back to his classroom.

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

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

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

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

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

10. Petitioner testified that she attempted to call the

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

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

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

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

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

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

to be credible.

11. Susan Wujastyk inspected the facility on March 5,

2004, as part of her investigation of this matter and found two

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

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

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

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

condition was found to be stable.

12. Petitioner retains a pest control company that

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

pellets or any form of rodent control devices. Three of

Petitioner's employees testified that they perform regular

inspections of the facility and none of them ever found rat

pellets or other toxic substances on the premises.

13. Following the joint investigation, a joint report was

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

recommended that Petitioner's license be revoked.

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

director sent a letter to Petitioner informing her that her

license was being revoked and advised Petitioner of her right to

"appeal" that decision through the administrative process.

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

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

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

16. At the hearing, Patricia Richard testified that she

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

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

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

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

child to a health care professional for examination but waited

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

Richard also testified that it was improper for Petitioner to

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

vomiting. She characterized these as serious child safety

violations and failure to follow proper emer gency procedures.

These were the primary reasons she recommended that Petitioner's

child care license be revoked and not renewed.

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

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

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

vomiting.

18. The evidence is not clear and convincing that the

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

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

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

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

reported to Petitioner, she did not follow proper emergency

procedures and did not properly notify the child's parents

promptly.

19. Petitio ner has demonstrated that her license for a

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

lesser penalty should be imposed.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and subject m atter of this

proceeding pursuant to Section 120.569 and Subsections

120.57(1), 120.60(5), and 402.310(2), Florida Statutes (2004). 2

21. Respondent has the burden to prove by clear and

convincing evidence the grounds to revoke or deny renewal of

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

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

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

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

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

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

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

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

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

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

22. The clear and convincing evidence standard has been

described as follows:

Clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

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

1983)) ( internal brackets omitted). Accord Westinghouse

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

986, 988 (Fla. 1st DCA 1991), rev. denied , 599 So. 2d 1279 (Fla.

1992) ("Although this standard of proof may be met where the

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

that is ambiguous").

C. Violations of the Licensing Statutes and Rules at

Respondent's Facility

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

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

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

rules adopted thereunder."

24. The rules adopted by Respondent to implement Sections

402.301 through 402.319, Florida Statutes, are codified in

Florida Administrative Code Chapter 65 C - 22.

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

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

2004, denial letter. It cited the following rules/statutes,

which Petitioner allegedly violated: Florida Administrative

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

notification).

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

provides:

(d) Emergency Procedures and

Notification.

1. Emergency telephone numbers, . . .

must be posted on or near all facility

tel ephones and shall be used as necessary to

protect the health, safety and well - being of

any child in day care.

2. Custodial parents or legal guardians

shall be notified immediately in the event

of any serious illness, accident, injury or

emergency to th eir child and their specific

instructions regarding action to be taken

under such circumstances shall be obtained

and followed. . .

3. All accidents and incidents which

occur at a facility must be documented and

shared with the custodial parent or leg al

guardian on the day they occur.

27. Although Respondent offered evidence that a violation

of the provisions relating to failure to properly store toxic

substances occurred (Florida Administrative Code Rule 65C -

20.010(1)(b)) Respondent did not include such violation on the

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

These letters served as the Administrative Complaint, and,

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

denying the revocation or renewal of Petitioner's license.

Marcelin v. State Department of Business and Professional

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

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

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

pel lets suspected of being toxic during her inspection on

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

prove the charge, had the allegation been included in the

March 23 or June 10 letters.

28. The evidence is clear and convincing that Pet itioner

failed to follow proper emergency procedures when notified that

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

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

her attention in violation of Florida Administrative Code

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

29. The evidence is clear and convincing that Petitioner

violated the provisions of this Rule. Petitioner's explanation

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

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

convincing. Petitioner's explanation that she swabbed the

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

and then determined that nothing serious had happened to the

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

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

parents immediately. This is a serious violation. Petitioner

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

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

not sufficient to excuse her neglect of this important safety

requirement.

D. Appropriate Penalty

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

Respondent to consider the following factors in determining the

appropriate disciplinary action for a violation of Subsection

402.310(1)(b), Florida Statutes:

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the viola tion,

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.

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

appropriate under the circumstances of these cases and that less

severe sanctions (such as a fine, suspension or provisional

licensing) were available to Respondent.

32. A provisional license is issued where Respondent has

continued concerns regarding the day care home's compliance with

the applicable statutes and rules. A provisional license is

issued in lieu of denying a license renewal or suspending or

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

gives the licensee an opportunity to correct the areas of

noncompliance, and because such homes are inspected more

frequently, Respondent has an opportunity to monitor the

licensee's progress. The issuance of a provisional license

would be appropriate in these cases.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Children and Family

Services issue a final order as follows:

1. Finding Petitioner guilty of violating the provisions

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

(one count each).

2. Finding Petitio ner not guilty of violating the

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

or similar provisions.

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

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

license.

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

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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 5th day of October, 2004.

ENDNOTES

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

of Administrative Hearings designated Selina Brew as Petitioner

and the Department of Children and Family Services as

Respondent. Those designations were not changed by the Clerk of

the Division of Administrative Hearings, as reflected in the

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

license revocation proceeding in which the Department of

Children and Family Services is the party seeking the

affirmative relief.

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

Florida Statutes. All references to Rules are to the current

version of the Florida Administrative Code.

COPIES FURNISHED :

Barry R. Nager, Esquire

PMB 211

5703 Red Bug Lake Road

Winter Springs, Florida 32708

Beryl Thompson - McClary, Esquire

Department of Children and

Family Services

400 West Robinson Street, Suite S - 1106

Orlando, Florida 32801

Circe Zamora, Esquire

1801 East Colonial Drive, Suite 108

Orlando, Florida 32803

Paul F. Flounlacker, Agency Clerk

Department of Children and

Family Serv ices

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

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.