05-001184 Department Of Children And Family Services vs. Seashell Corp., D/B/A Happy Hearts East Child Care Center Status: Closed Recommended Order on Tuesday, August 2, 2005.

Summary: Petitioner proved successive acts requiring the lowest allowable fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1184

)

SEASHELL CORP., d/b/a HAPPY )

HEARTS EAST CHILD CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

cause in Lake City, Florida, on June 27, 2005, before Ella Jane

P. Davis, a duly - assigned Administrative Law Judge of the

Division of Administrative Heari ngs.

APPEARANCES

For Petitioner: Lucy Goddard - Teel, Esq uire

Department of Children and Family Services

Post Office Box 390, Mail Sort 3

Gainesville, Florida 32602 - 0390

For Respo ndent: Robert Turbeville,

Qualified Representative

Seashell Corporation

174 N orthwest Venice Glen

Lake City, F lorida 32055

STATEMENT OF THE ISSUE

Whether the Department of Children a nd Family Services

(DCF) properly imposed a civil penalty against Seashell Corp. ,

d/b/a Happy Hearts East Child Care Center in the amount of

$150.00.

PRELIMINARY STATEMENT

Respondent timely requested a disputed - fact hearing, and

this cause was referred to the Division of Administrative

Hearings on or about April 1, 2005.

At the disputed - fact hearing on June 27, 2005,

Robert Turbevi l le, a principal of Respondent's corporat e parent ,

was examined on the record and accepted as Respondent's

qualified represent ative, provided he filed an appropriate

written authorization from a corporate officer within 10 days of

the close of hearing. That authorization was filed, and

Mr. Turbeville's qualified representative status is hereby

ratified.

Petitioner DCF presented the oral testimony of

Victoria Ramsey, Donna Giebeig and Sandy Looney, and had four

exhibits admitted in evidence. Robert Turbeville testified on

behal f of Respondent, and Respondent had three exhibits admitted

in evidence. The Prehearing Stipulation was admitted in

evidence as Joint Exhibit A.

No transcript was provided.

Petitioner timely filed a Proposed Recommended Order, which

has been considered in preparation of this Recommended Order.

Respondent waived filing a proposed recommended order.

FINDI NGS OF FACT

1. Respondent Seashell Corp. is licensed to operate a

child care facility known as "Happy Hearts -- East" located at 149

S outheast Lochlynn Terrace, Lake City, Florida.

2. On August 24, 2004, DCF received a complaint to the

abuse hotline, alle ging that at the facility , children were

playing in a mop bucket with water , while staff members were in

the kitchen talking, not paying attention or supervising the

children , and too far away to stop the children from playing in

the mop bucket.

3. The facility's normal practice is for children who have

been awakened from their naps to be sent to the main room to be

supervised by staff other than their teacher. This is done to

keep the now - awake and newly energized youngsters from waking

the children s till napping. Apparently, the reporter to the

abuse hotline was a visitor who was present on August 24, 2004,

t o pick up some papers.

4. Later the same day, the teacher of the two - year - olds

told DCF investigators that as the children awoke from their

nap s, she sent them to the main room. S taff also admitted to

investigators that the mop bucket had been in the main room

within reach of the children. It was admitted that a staff

member had stopped the children before any of them touched the

water and diss olved cleaning fluids in the mop bucket, but one

staff member also stated that her four - year - old daughter had

played with the mop handle.

5. DCF's abuse investigator closed the hotline case with

only minor indicators of inadequate supervision . However,

Respondent's license was cited by DCF's licensing regulators for

minor noncompliance, and a $50.00 civil penalty was imposed.

6. Due to the location of the two - year - old room in

relation to the main room, an inspector, Ms. Giebeig, concluded

that the chi ldren had to go through a closed door to the main

room and that they were not within sight of a teacher at all

times in the main room. The floor diagram in evidence does not

refute her interpretation, despite Mr. Turbeville's testimony

that the teacher of the two - year - olds was expected to stand in a

doorway and watch until the children were in view of other staff

members in the main room. Even diligent human beings cannot see

around right - angled corners and simultaneously maintain a

sightline to children in two different rooms.

7. Child care licensees are required to keep their

facilities clean. Prior to the August 24, 2004 citation,

Respondent's staff always took the mop bucket into the main room

to mop, because this procedure is more efficient. Sinc e the

citation, they leave the mop bucket in the kitchen, away from

the children, and take only the mop back and forth for cleaning

the child care area s .

8. On December 6, 2004, Ms. Giebeig was again at

Respondent's facility . At that time, she observed a mop hanging

to dry on a low picket fence accessible to children from the

back porch. From May 6, 1999, when Respondent opened, until

Respondent was cited for this incident on December 6, 2004,

staff had always hung the mop in the same location after it had

been rinsed out, so as to prevent mildew. Despite several

intervening inspections by DCF, Respondent had never been told

not to follow this procedure. At no time has any child been

seen to touch a mop in that location or to come in contact with

any t oxic chemical residue on a mop in that location. The

omission of previous citations was because Ms. Giebeig did not

see the mop hanging on the fence on any of her prior inspection

visits, which usually occurred only four times each year. The

citation on December 6, 2004, proposed a civil penalty of

$100.00 . Since that date , the mop has been dried elsewhere.

9. It is not DCF's practice to cite a child care licensee

for every deficiency, violation, or lack of precise compliance

with the licensing and insp ection statutes and rules which DCF

administers, but prior to the August 24, 2004 citation, there

had been two similar observations of non - compliance on March 18,

2003 (unsecured hazardous materials) , and August 9, 2004 (staff

not within sight of children) . The December 6, 2004 citation

was a fourth occurrence. Each of these situations was similar ,

in that they involved concerns about very young children being

unobserved or in the vicinity of toxic materials.

CONCLUSIONS OF LAW

10. The Division of Admi nistrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.57 and 120.60, Florida Statutes.

11. DCF has the duty to go forward and the burden to prove

by a preponderance of the evidence the charges aga inst

Respondent.

12. Section 402.310(1)(a), Florida Statu t es, provides:

The department or local licensing agency may

deny, suspend, or revoke a license or impose

an administrative fine not to exceed $100.00

per violation, per day, for the violation of

any provision of ss. 402.301 - 402.319 or

rules adopted thereunder. However, where

the violation could or does cause death or

serious harm, the department or local

licensing agency many impose an

administrative fine, not to exceed $500.00

per violation per day .

13. Florida Administrative Code Rule 22.001(5)(a),

provides, in pertinent part:

(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 ch ild’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 r esponsible for

the supervision of the children in care, be

capable of responding to emergencies, and be

accountable for children at all times, which

includes when children are separated from

their groups.

14. Florida Administrative Code Rule 65C - 22.002(1 )(b)

state s :

Physical Environment

(1) General Requirements.

* * *

(b) All areas and surfaces accessible to

children shall be free of toxic substances

and hazardous materials.

15. There is no suggestion herein that Respondent had any

evil intent or w as unusually careless or negligent. Indeed,

Respondent has been particularly cooperative and anxious to work

with DCF , even to adopting the clearly inefficient procedure of

carrying a wet mop, without a bucket, from the kitchen to other

rooms for numerous cleaning activities throughout the day and

even to using a new location to dry the mop after it has been

rinsed .

16. DCF's trained inspection personnel may have been

hyper - vigilant to potential dangers , but no one disputed that

the potential dangers ex isted. The inspectors' special

sensitivity w ere warranted here, because cleaning fluids are

involved ; very young children's eyes and mucus membranes were at

stake ; and a similar exposure problem had been r epeat ed , as had

a failure to observe problem . Rat her than thinking of this as a

case of hyper - vigilance, it is more reasonable to think of it in

terms of the too - often heard modern expression, "But I didn't

take my eyes off the baby for a minute; the accident just

happened," or the too - infrequently heard expression , "Bette r

safe than sorry."

1 7 . It is undisputed that on August 24, 2004, a mop and

full mop bucket were within reach of children aged two through

four, and that a four - year - old child was playing with the mop

handle, in violation of Florida Ad ministrative Code Rule 65C -

22.002(1)(b).

1 8 . It is undisputed that on December 6, 2004, a mop was

hung to dry on a picket fence, within reach of the children, in

violation of Florida Administrative Code Rule 65C - 22.002(1)(b).

19 . DCF has proven, by a pre ponderance of the evidence,

that on A ugust 24, 2004, Respondent violated Florida

Administrative Code Rule 22.001(5)(a) and Florida Administrative

Code Rule 65C - 22.002(1)(b), and that on or about December 24,

2004, Respondent violated Florida Administrative Code Rule 65C -

22.002(1)(b).

20 . It is undisputed that Respondent was previously cited

for similar violations involving inadequate supervision or

hazardous materials accessible to children in its care.

21 . The amount of the two civil penalties, severally and

jointly, at a total of $150.00 is both reasonable and the lowest

amount authorized pursuant to the applicable fine schedule.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is recommended that the Department of Children a nd Family

Services enter a final order imposing a civil penalty in the

total amount of $150.00 against Seashell Corp. , d/b/a Happy

Hearts East Child Care Center.

DONE AND ENTERED this 2 nd day of August , 2005 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative 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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 nd day of August , 2005 .

COPIES FURNISHED :

Josie Tamayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee , Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Lucy Goddard - Teel, Esquire

Department of Children and

Family Services

Post Offi ce Box 390, Mail Sort 3

Gainesville, Florida 32602 - 0390

Robert Tu r beville

Seashell Corporation

174 Northwest Venice Glen

Lake City, Florida 32055

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 d ays 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.