04-003046 Small Fries Day Care, Inc. vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, September 12, 2005.

Summary: Respondent showed that Petitioners had committed a number of repeated violations of rule standards which protect children. Some violations were major, others were uncorrected or undocumented. Recommend provisional license with 1-year`s close monitoring.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SMALL FRIES DAY CARE, INC., )

)

Petitioner, )

)

vs. )

) Case No. 04 - 3046

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

_______________________________ )

THE GROWING TREE LEARNING )

CENTER AND NURSERY, )

)

Petiti oner, )

)

vs. ) Case No. 04 - 3892

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proc eeding and hearing before

P. Michael Ruff, a duly - designated Administrative Law Judge of

the Division of Administrative Hearings. The formal hearing was

conducted in Tavares, Florida, on June 13, 2005. The

appearances were as follows:

APPEARANCES

F or Petitioner: Robyn A. Hudson, Esquire

3900 Lake Center Drive, Suite A - 2

Mount Dora, Florida 32757

For Respondent: T. Shane DeBoard, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highwa y

Wildwood, Florida 34785

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern

whether the application submitted by the Petitioner for a new

one - year license for Small Fries Day Care, Inc., should be

granted, or deni ed based upon violations of specified statutes

and rules referenced below as alleged by the Respondent. It

must also be resolved whether the application to operate a new

facility known as the Growing Tree Learning Center and Nursery

should be denied becau se of the same alleged instances of non -

compliance with the relevant statutes and rules.

PRELIMINARY STATEMENT

This cause arose when the Department of Children and Family

Services (Department) notified the Petitioner by letter of

July 23, 2004, that its a pplication for a new one - year license

to operate a child care facility known as Small Fries Day Care,

Inc. (Small Fries), was denied (Case No. 04 - 3046). The denial

was based on purported violations of specified statutes and

rules discovered during inspec tions of the facility in April,

May, and July 2004. The Petitioner timely requested a formal

administrative proceeding to dispute the Department's findings,

and the Department allowed it to continue operating pending

resolution of the resulting formal pro ceeding, conditioned on an

end to any violations of statutes or rules.

Also, by letter of August 3, 2004, the Petitioner was

advised that its July 14th, 2004, application (Case No. 04 - 3892)

to operate a new child care facility to be known as the Growing

T ree Learning Center and Nursery was denied based upon the

alleged repeated violations of statutes and rules and the

Petitioner's operational history as the operator of Small Fries.

This letter noted three verified instances of inadequate

supervision, the most recent being May 11, 2004. The May 11,

2004, inspection also revealed failures to conduct background

screening procedures and to ensure that staff received required

training. In this denial, a formal administrative proceeding

was also requested and also referred to the Division of

Administrative Hearings. Ultimately the two cases were

consolidated for hearing by the undersigned Administrative Law

Judge.

The cause came on for hearing as noticed. At the hearing

the Respondent Department presented tw o witnesses and six

exhibits, all of which were admitted into evidence.

Additionally, the Respondent re - called witness Diana McKenzie to

testify on rebuttal. The Petitioner presented the testimony of

five witnesses, including the testimony of Shirley Car ter, the

owner and operator of the subject facility. Additionally, the

Petitioner presented Petitioner's exhibit one which is admitted

into evidence. Upon concluding the hearing the parties

requested a transcript of the proceeding and elected to submit

p roposed recommended orders. The Proposed Recommended Orders

were timely submitted and have been considered in the rendition

of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner operates a child care facility known as

Small Fries Day Care, Inc. She also has applied for a license

to open a new facility known as the Learning Tree. The

Department notified the Petitioner, by letter of July 23, 2004,

that the application submitted for a new one - year license for

Small Fries was denied. The letter of denial was based on

violations of statutes and rules enforceable by the Department,

which were purportedly discovered during the inspections of the

facility in April, May, and July of 2004.

2. Thereafter by letter of August 3, 2004, the Petitioner

was notified that her application for a license to operate a

second child care facility known as the Growing Tree Learning

Center and Nursery was also denied, based upon the history of

alleged violations and non - compliance with statutes and rules

during the o peration of the Small Fries. The Petitioner

requested a formal administrative proceeding to contest both

decisions and the matter was referred to the Division of

Administrative Hearings. The two cases were later consolidated

into the instant proceeding.

3. The Department received a complaint regarding

transportation of children. It therefore dispatched an

investigator, Judy Cooley, to conduct an inspection of the

Petitioner's facility on April 6, 2004. The precise nature of

the complaint was never sub stantiated. Ms. Cooley, however,

upon conducting her inspection, discovered a violation of

Florida Administrative Code Rule 65C - 22.001(6)(f). This is a

rule which mandates that children transported in a van must be

counted and that both the driver of the van and one staff member

must both count the children and sign a transportation log

verifying that all children had exited the van. This is

required to be done each time children leave or board the van.

The failure to document an inspection of the van b y both the

driver and another staff member to ensure that all children are

accounted for and out of the van is considered to be a major

violation of the Department's rules and policy. The purpose of

that requirement is to prevent children from being accid entally

left in a van in the hot sun (or left at some location away from

their home or the Petitioner's facility when the van departs a

location.) If a child is left in a van in the hot sun a serious

injury can result, rendering this infraction a serious one.

4. Ms. Cooley also determined that a violation had

occurred concerning the "background screening" requirements upon

her inspection on April 6, 2004. That is, the Petitioner's

records did not show that screening had been done for all

personnel emplo yed by the Petitioner's facility.

5. On May 11, 2004, another investigation or inspection of

the facility was conducted by the Department. This was because

the Department had received an anonymous abuse report concerning

the Petitioner's facility. Upon investigation it was determined

that the report was unfounded. It had been alleged that a child

had sustained an eye injury while in the custody and care of the

Petitioner, but that was determined not to be the case; rather,

the eye problem was determine d to have been "Sty" infectious

process and not a result of any injury sustained while a child

was in the care of the Petitioner or her staff members.

6. The Petitioner was also charged with a violation

regarding this eye injury issue for failing to file an "incident

report" concerning it and failing to give a copy of the report

to the child's parent the same day of the incident. This

violation has not been proven by the Department because, in

fact, no injury occurred. The child had to have appeared on the

premises of the Petitioner's facility that day already suffering

from the eye condition. Therefore, there was no "incident"

occurring on the premises of the Petitioner, or while the child

was in the Petitioner's care. Therefore, there could be no

incident requiring reporting to the Department and the parent

under the Department's rules and policies. Apparently, the

owner of the facility, Ms. Carter, later provided a copy of an

incident report in the belief that the Department required it.

In any event, this purported violation was not shown to have

legally or factually amounted to an incident or a violation.

7. As to that May 11, 2004, inspection or investigation,

however, the Department's evidence derived from that May 11,

2004, inspection whi ch was not refuted establishes that the

Child Protective Investigator (CPI) who conducted the

investigation observed other violations. The investigator noted

that the staff was failing to adequately supervise children and

that the staff had not had requir ed training. The CPI found

that after observing the day care facility on three different

occasions in a two - week period, there were always children

"running around," not in their classroom and without staff

providing supervision of them. The CPI noted pr ior reports for

inadequate supervision and noted that some of the staff had not

been trained in all of the required hours for teachers required

by the Department's rules. These findings by the CPI were

supported by unrefuted evidence adduced by the Depart ment at

hearing, and accepted as credible.

8. Ms. Cooley returned to the facility to conduct a

follow - up inspection on July 23, 2004. This inspection was

specifically related to the pending application filed by the

Petitioner for a renewed one - year lice nse for the facility. Ms.

Cooley prepared a list of activities, conditions, or records as

to the facility, its operations, the children, and the staff

personnel, for purposes of indicating whether those checklist

items, based upon Department rules, had be en complied with or

had not been complied with. There were a total of 63 specific

requirements under the Department's statutes and rules for Ms.

Cooley to employ in inspecting the facility. Ultimately, she

found that the facility was in non - compliance on 11 out of the

63 items.

9. Ms. Cooley thus determined on this visit that the

required staff - to - child ratio was improper. The facility was

out of compliance on this issue by having only one staff member

supervising the "infant room" with one child less than a year

old, and five children aged one year. The number of staff

needed is controlled by the age of the youngest child in a

group. Two staff members were required in this instance instead

of one.

10. Ms. Cooley also found, as a minor violation, th at the

facility had an open door with no screen, with only a curtain

covering the opening and that children were sleeping on the

floor on only towels instead of the required individual sleeping

mats (minimum one inch thick.) The owner of the facility,

Ms. Carter, however, testified that indeed the mats were in use

but were covered with towels and therefore they were not readily

visible. It is thus difficult to determine whether all the

children slept on required sleeping mats or some of them, or

none of t hem. The testimony in this regard at least roughly

amounts to an equipoise, and it is determined that this

violation has not been established.

11. Another violation Ms. Cooley found to have occurred

was that there were no records which would establish t hat the

facility had conducted required fire drills for one and one - half

months. Child care facilities such as this mandatorily must

conduct at least once a month fire drills. They mandatorily

must document each fire drill in a record for ready inspectio n.

12. Ms. Cooley also found that there was no record proof

of enrollment by staff members in the required 40 - hour training

course which all employees must undergo within 90 days after

they are hired. The facility also had been cited for this

violatio n on the April 6, 2004, visit. It remained uncorrected

during the interim and on the day of Ms. Cooley's second visit.

13. Another violation was found on this occasion in that,

for the number of children present in the facility, there must

be at least t wo staff members who have the necessary child

development associate credentials. There was only one staff

member who had those necessary credentials. There are also no

records to establish that the required in - service training for

staff members had been conducted.

14. The additional three violations found by Ms. Cooley

involve the failure to maintain required records concerning

child immunizations, staff personnel records, and background

screening records establishing that background screening had

bee n properly done. If that required information is not

appropriately filed and available at the facility, that in

itself is a violation. If the file record was required to

document compliance with some requirements, such as staff

training, the absence of t he documentation results in a

presumption that there was no compliance.

15. The lack of adequate staff in the infant room

necessary to meet the statutorily required staff - to - child ratio,

as noted on the July 23, 2004, inspection, is a major violation

u nder Department rules and policies. Direct supervision is

mandated for children of that age at all times. The maintenance

of this staff - to - child ratio is considered to be so important by

the Department that its staff are not allowed to leave a

facility i f an improper staff - to - child ratio (inadequate) is

found to exist until the problem is corrected.

16. The failure to keep records establishing timely

compliance with background screening requirements for staff of

the facility, provided for in Chapter 435 , Florida Statutes, was

found on the April 6, 2004, inspection and found to still exist

at the time of the July 23, 2004, visit. The same factor was

true with regard to the requirement that new staff be enrolled

in the mandatory 40 hours training program within 90 days of

being hired.

17. The failure to correct these problems concerning

background screening and training and the documenting of it,

between April 6, and July 23, 2004, becomes even more critical

when one considers that Ms. Carter, the owner of the Petitioner,

had been provided with technical assistance by Ms. Cooley

designed to help her bring her facility into compliance in all

respects at the April 6, 2004, inspection visits. These

violations concerning the background screening, train ing

requirements and then documentation are considered to be serious

infractions by the Department in its interpretation of its

rules, and in the carrying out of its policies.

18. In summary, although one or two of the violations were

not proven and at l east one, such as the failure to have a

screen on a door, was not established to be a serious violation,

the established violations do show an overall pattern of

disregard of statutes and rules adopted for the safety, health,

and welfare of children entrus ted to the care of such a child

care facility owner and operator. That this was so, even the

Petitioner was informed of and counseled regarding the

violations. Some of them remained in non - compliance or at least

again in non - compliance, upon the second i nspection visit. It

is not enough that the operator or owner of the facility

provided the required documentation later after its absence is

discovered or that she corrected the training, background

screening, and other violations after they were discovere d. The

statutes and rules which apply require that such operations be

done correctly at all times, and that performance be timely

documented at all times.

19. The keeping of documentation in the facility's records

concerning the violative items re ferenced above is not required

for mere hollow bureaucratic convenience, but rather, because

the Department has a very high standard of public trust in

ensuring that children in such facilities are maintained in a

safe fashion. It must have available, for ready inspection, at

all reasonable times, the documents which support that the

duties imposed by the various relevant statutes and rules are

being properly carried out, so that it can know, before severe

harm occurs to a child or children, that they migh t be at risk.

20. These established violations contribute to the overall

pattern, shown by the Department, of an habitual disregard of

the statutes and rules adopted and enforced for purposes of the

safety of the children entrusted to the care of the Peti tioner

(or at least timely compliance). Indeed, prior to the denial of

a new one - year license for Small Fries and the denial of initial

licensure for the proposed Growing Tree Facility, the licensing

supervisor, Ms. McKenzie, conducted a review of the lic ensing

file of the Petitioner. Ms. McKenzie thus established in the

evidence in this record, that the file reflected repeated past

violations involving failing to adequately supervise children

and concerning the background screening and training and timel y

training of employees.

21. Upon completion of each inspection involved in this

proceeding Ms. Carter, the operator, was given a copy of the

report or checklist prepared by Ms. Cooley. She was given an

opportunity at that point to respond to it or to w rite any

comments thereon. On neither occasion, April 6, 2004, nor

July 23, 2004, were there any written comments made by

Ms. Carter that disputed the fact of the violations found by

Ms. Cooley. There were some notes by way of explanation or of

justifica tion concerning the hiring of a teacher "for my

toddlers" etc., but the notes or explanations provided by

Ms. Carter in writing and in her testimony at hearing, do not

refute the fact of the occurrence of the violations delineated

in the above Findings of Fact. In summary, Ms. Carter's

explanations in her testimony to justify or explain the failures

or the violations found above are not credible, in terms of

showing that the violations did not occur.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

23. Licenses to operate child care facilities

automatically expire one year from the date of issuance of the

license purs uant to Section 402.308(1), Florida Statutes. In

order to get a new one - year license, the operator or holder of

the license must submit a completely new application in

accordance with Section 402.308(3)(b). That statutory provision

provides in pertinent part as follows:

Prior to the renewal of a license, the

Department shall reexamine the child care

facility, including in that process the

examination of the premises and those

records of the facility as required under s.

402.305, to determine that minimum standards

for licensing continue to be met.

24. The Department shall then issue the new license "upon

being satisfied that all standards required by ss. 402.301 -

402.318 have been met." § 402.308(3)(d), Fla. Stat. Thus the

issuance of a new license is clearly not a mere ministerial act.

It involves the exercise of the Department's discretion, just as

much as with an initial licensure application because,

basically, a new licensing investigation and decision must be

conducted each year that include the events of the most recent

license year in its consideration.

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

a license may be denied by the Department for violation of any

provision of Sections 402.301 - 402.319, Florida Statutes, or the

r ules adopted thereunder. Thus, the Department has the burden

of presenting evidence of any violations or one or more

provisions of the rules or statutes. Regardless of who bears

the ultimate burden of proof or persuasion, however, the

Department clearly and convincingly established the repeated

violations of the statute and rules at issue in this case.

26. Evidence adduced by the Department showing the

violations found by Ms. Cooley was essentially unchallenged as

to their occurrence. Ms. Carter at tempted to excuse or justify

the fact that the violations had occurred by later providing

corrections or claiming to have corrected them or belatedly

supplying missing documentation. That does not change the fact

that the violations occurred and that viol ations of these

statutes and rules, at least in part, are serious ones as

delineated in the above Findings of Fact, in terms of potential

for harm to children.

27. The relevant statutes and rules are basically for the

provision of safety to children. Th e correction of a violation

will not undo an injury which has already occurred because the

violation was allowed to stand or was belatedly corrected. Thus

the explanations, apologies or promises to avoid violations in

the future do not prevent the violati ons from being the

Petitioner's responsibility. Correcting the problem after it is

determined by Department personnel is not a substitute for not

having the violation in the first place, or for self - correcting

a problem before it has to be corrected throu gh the mandate of

Department personnel. This is especially the case where as

noted and found above, that many of the infractions occurred

repeatedly or were allowed to remain uncorrected for a

substantial period of time.

28. In summary, the Petitioner a ppears to be genuinely

concerned about the welfare of children and to have compassion

for the children in her care and to attempt to ensure that the

children in her care are properly and safely cared for. Her

attempt, however, has been shown not to be goo d enough. Child

care facility operators are quite properly and understandably

held to a very high standard of performance. This is essential

in order to protect the children placed in their care by parents

or in some instances by a state agency. Thus, c onsistent

compliance must be the standard and the norm, and not

explanations for non - compliance or satisfaction with partial

compliance.

29. Accordingly, it is determined that, while outright

permanent denial of licensure may not be justified in th is

situation, that very close and focused supervision should be

provided in order for the Petitioner to be licensed at her

present facility, Small Fries, on a provisional basis, until she

demonstrates the ability to follow the statutes and rules on a

consi stent basis. Because of the violations found concerning

her existing facility, Small Fries, there has been no

justification adduced, by even a preponderance of evidence,

which would justify the granting of a second license to a new

facility, the Growing T ree Learning Center and Nursery, Inc.

RECOMMENDATION

That having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, there fore,

RECOMMENDED that a final order be entered by the Department

of Children and Family Services granting a provisional license

to Small Fries Day Care, Inc., conditioned on the holder of that

license undergoing additional training at the direction of the

Department, designed to educate the operator under the license

regarding the proper, safe care, and protection of children in

her custody, operation of a child care facility, including the

proper screening and training of staff, record keeping, and the

ot her items of concern shown by the violations found in this

case. Such provisional licensure shall be in effect for a

period of one year when such training shall be completed, and

shall be conditioned on monthly inspections being performed by

relevant Depa rtment personnel to ensure compliance with the

relevant statutes and rules. It is, further,

RECOMMENDED that the application for licensure by the

Growing Tree Learning Center and Nursery, Inc., be denied.

DONE AND ENTERED this 12th day of September, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 12th day of September, 2005.

COPIES FURNISHED :

Gregory Venz, Agency Cler k

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallaha ssee, Florida 32399 - 0700

Robyn A. Hudson, Esquire

3900 Lake Center Drive, Suite A - 2

Mount Dora, Florida 32757

T. Shane DeBoard, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

NOTICE OF RI GHT 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 cas e.