05-002616 Oakcrest Early Education Center, Inc. vs. Department Of Children And Family Services Status: Closed Recommended Order on Tuesday, March 14, 2006.

Summary: Petitioner committed a serious violation which endangered the life of a child, without permanent injury, and, under the circumstances, effective denial of annual relicensure for one year is proper.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OAKCREST EARLY EDUCATION )

CENTER, INC. , )

)

Petitioner, )

)

vs. ) Case No. 05 - 2616

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES , )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing before

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

the Division of Administrative Hearings. The formal hearing was

conducted in Ocala , Florida, on October 1 2 , 2 005 . The

appearances were as follows:

APPEARANCES

For Petitioner: Edward L. Scott, Esquire

Edward L. Scott, P.A.

409 Southeast Fort King Street

Ocala, Florida 34471

For Respondent: T. Shane DeBoard, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Department should deny the Petitioner's pending

applicat ion for a new one - year license effective June 8, 2005 ,

because of an alleged violation that occurred on June 7, 2005,

where a three - year - old child was left in a van , suffering

purportedly life - threatening injuries (heat stroke). See

§ 402.305(10), Fl a. St at. and Fla . Admin. Code R. 65C - 22.001(5) .

If the violation occurred, it must also be determined whether

denial of license renewal or some other authorized penalty

should be imposed.

PRELIMINARY STATEMENT

This cause arose from an incident occurring on Ju ne 7,

2005, where the Petitioner allegedly failed to account for all

children returning from a field trip at approximately 1:15 in

the afternoon. As a result a three - year - old child was allegedly

left in one of the Petitioner's vans in violation of Section

402.305(10), Florida Statutes and Florida Administrative Code

Rule 65C - 22.001(5). The child had to be transported to the

emergency department at the local hospital for complications

resulting from heat stroke.

An emergency suspension order was entered on June 9, 2005,

the license was suspended and all operations at the facility

terminated. The Petitioner availed itself of the opportunity to

obtain a Section 120.57(1) formal proceeding to dispute the

allegations made by the Department and the cause was transmitted

to the Division of Administrative Hearings and the undersigned

Administrative Law Judge for resolution.

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

the Petitioner presented 11 witnesses and 49 exhibits , all of

which were admitte d into evidence . The Respondent presented

seven witnesses and nine exhibits, all of which were admitted

into evidence. Upon conclud ing the proceeding the parties

requested an extending briefing schedule and thereby timely

submitted Proposed Recommended O rders which have been considered

in the rendition of this Recommended Order after receipt of the

transcript.

FINDINGS OF FACT

1. The Petitioner is a large daycare center owned and

operated by Joann Jones. It is located in Ocala, Florida and

has been lic ensed since 1992. The Petitioner normally operates

its daycare center caring for as many as 250 to 275 children

with a staff of 45 to 50 people. The Petitioner and its owner

Ms. Jones , has provided child care in Marion County for many

years, operating as many as five daycare centers. Ms. Jones has

an extensive history in training , education and experience in

operating daycare centers and her experience includes working

with the former Department of Health and Rehabilitative Services

and the Department of Children and Famil y Services on various

committees and licensing groups for the State of Florida.

2. Prior to the incident on June 7, 2005, the Petitioner

had had relativ ely minor infractions of the Agency's

administered statutes and rules involving ope ration of a daycare

center. These infractions primarily included compliance

documentation errors and an instance in which a first aid kit

did not have all of required the type of supplies , and an

instance where a van driver failed to have in his possessio n and

make proper use of a head count check - list on a fi e ld trip. In

these instances when the Petitioner was found not to be in

compliance, compliance was corrected normally by the close of

the inspection day when the infraction was discovered . The van

d river who failed to have his checklist with him was terminated

for violating the Petitioner's policy that a roster including

all childrens ' names would go on the van at any time the van was

being used to transport children.

3. In addition to the above instances, the Petitioner was

documented on an inspection checklist on May 13, 2003, for

failure to properly maintain a transportation log; for

enrollment form violations; for failing to document law

enforcement background checks for staff; and for failing to

maintain appropriate documentation of Level II screening for

staff members . These were violation s of Florida Administrative

Code Rule s 65C - 22.006(4)(5) and 65C - 22.001(6)(f).

4. The Petitioner's exhibit thirty - five references a re -

inspection fr om October 9, 2003, and is a checklist. At this

time the facility was in violation of Florida Administrative

Rule 65C - 22.003(2)(a), for failure to have staff appropriately

trained and the training certificates documented; for violating

Florida Administrativ e Code Rule 65C - 22.004(2)(a), and for

failure to maintain first aid kit in the facilit y's vans and

buses (the violation referenced above involving no t having all

required items in one first aid kit on this occasion ) . The

Petitioner was also in violation o f Florida Administrative Code

Rule 65C - 22.006(2), for failure to properly maintain

immunization records and Rule 65C - 22.003(2)(a) for failure to

properly maintain relevant documentation.

5. An inspection was conducted April 22, 2004. At this

time , the f acility was in violation of Florida Administrative

Code Rule 65C - 22.003(2)(a), for failing to document that all

staff had completed a 40 - hour training course and for failure to

properly document the training course.

6. An inspection made April 26, 2005, revealed that the

facility was in violation of the proper staff to child ratio

established in Section 402.805, Florida Statutes. The proper

staff to child ratio on that occasion was 17 to 5 and the

Petitioner , when observed , had a 17 to 4 staff to child r atio.

The problem was corrected on the spot that same day.

7. On April 27, 2005, an inspection was conducted and the

facility was found to be out of compliance with Florida

Administrative Code Rule s 65C - 22.004(2) and 65C - 22.006(5)(d) ,

and Section 435.04 , Florida Statutes, for, respectively, failing

to properly maintain first aid kits; and failing to properly

provide finger prints to the Florida Department of Law

Enforcement for the purpose of obtaining required background

screening for staff.

8. Thes e prior infractions mostly involved documentation

errors rather than actual deficiencies in the operation of the

Petitioner's facility and daycare services. The Petitioner has

not had a proceeding actually filed against her facility and

license by the Dep artment prior to this one , with the possible

exception of an occurrence some seven years ago when the

Petitioner received a $100.00 fine related to a documentation

error. These prior infractions were not shown to have been

serious ones involving an immedi ate threat to the health or

safety of the children in Petitioner's care. Most of these

infractions were shown to have been corrected on the same day

they were noted on the relevant inspection reports.

9. A three - year - old child was inadvertently left in a van

when it was returned and parked at Petitioner's daycare center,

on June 7, 2005. this incident caused the instant proceeding to

deny the Petitioner's re - licensure. On that day two vans from

the Petitioner's facility left to take a group of three - ye ar -

olds on a n outing for lunch for pizza party. On that date the

Petitioner had in operation , policies that required all teachers

to keep roll s of their children , to count their children every

hour and to complete a log which was to be turned into the

dir ectors of the daycare center at the end of the day. The

Petitioner was responsible for providing these logs to the

Respondent Agency upon routine inspections.

10. There was also a policy in effect regarding operation

of vans and buses for transportatio n of children. The teachers

and bus drivers were required to keep a log of the children

riding on the vans. The teachers were required to take a " head

count " when the children left the classroom and when they

entered and exited the vans or buses. The te achers were

required to carry a roll with all the children's names with the m

at all times. They were required to carry this roll on a clip

board and this policy even if the teachers took the children out

on the playground , where they were still required t o do head

counts. The Petitioner held meetings periodically with its

employees and informed them regarding the policy concerning head

counts and the log for using the vans , which involved head

counts.

11. Ladonna Cunningham was a van driver for the Pet itioner

on the date in question , June 7, 2005. She established that she

was aware of the policy of counting children before they got on

the van, after they got on the van, and when they got off the

van again , as well as the fact that the vans were to be c hecked

("van sweeps") after all the children were off the van to make

sure that no one was still on the van. On June 7, 2005, she and

the teacher going on the fi e ld trip with her van,

Katrice Robinson, counted their children and Katrice did a van

sweep wh en they returned to the daycare center after the trip.

Ladonna Cunningham did a second van sweep to make sure that

there were no children on her van and was aware that this was in

accordance with the Petitioner's policy.

12. On June 7, 2005, a three - yea r - old child (N.B.) was

taken on the fi e ld trip to the pizza party. The van returned to

the daycare center sometime after 1:40 p.m. There were two vans

used on this field trip. On e van was driven by

Ladonna Cunningham , accompanied by the teacher Katrice Robinson .

The second van, with N.B. aboard, was operated and supervised by

two other employees, Amina Francious and Regina Brown. Neither

Francious nor Brown made a head count of the children or a van

sweep after returning to the daycare center. Regina Brown told

investigators that she knew they were suppose d to make a head

count when they returned to the daycare center that day but

neither she nor Amina Francios had done so . The evidence also

shows that Katrice Robinson , who was N.B. 's teacher , " checke d

him off " as being in the classroom at 2:00 p.m. , that day for a

snack when he was in fact outside in the closed van. This

erroneous fact was entered by Katrice Robinson on the head count

sheet provided by the Petitioner. All teachers are required to

ma ke a head count every 30 minutes and to note the time a meal,

snack, or lunch is served to a child.

13. Later that afternoon the child N.B. was discovered

either asleep or unconscious in the closed van which had been

parked in the hot sun. The child was difficult to arouse or

unresponsive and had an external Fahrenheit temperature o f 104

degrees. At 4:02 p.m. , he was taken by EMS personnel to the

hospital where he was ultimately diagnosed with hyperthermia or

heat stroke. He was unresponsive, having se izures, active ly

vomiting, and had to be in t ubated since his left lung had

collapsed. The Department received abuse report 2005 - 396658 as

a result of this incident. Fortunately, the child recovered.

14. On June 8, 2005, Ms. Littell, a Department

repr esentative interviewed the three employees , Regina Brown,

Katrice Robinson, and Amina Francois. Both Ms. Francios and

Ms. Brown admitted failing to conduct a van sweep after they

returned to the Petitioner's facility on June 7, 2005. All

three of these e mployees were arrested for felony child neglect.

These interviews , as well as Petitioner's owner and operator

Joann Jones , in her testimony , confirmed that on June 8, 2005,

the Petitioner's assistant director Irma Ram jit, had asked

Ms. Francois and Ms. Br own to sign for an employee handbook that

they had never actually received. Thus Ms. Ramjit had asked

these employees to falsify documentation after the child had

been left in the van , in an apparent attempt to show that the

facility had followed its own procedures when in fact it had

not. This action by Ms. Ramjit was not at the behest or

condoned of the Petitioner's owner , Ms. Jones, however.

15. The abuse report referenced above was ultimately

closed and finalized as "verified for neglect and inadequ ate

supervision" as a result of the child being left in the van.

Phy sical injury had occurred as a result of the physical injury

suffered by the child from heat exposure. Obviously the

Petitioner's policy of conducting head counts every 30 minutes

was no t done properly on June 7, 2005. Indeed, the last head

count for the class of the child who was left on the van was

conducted at 9:30 a.m. , on June 7, 2005.

16. Joann Jones the Petitioner's owner was shocked and

devastated by the events of June 7, 200 5. She had never had

such an occurrence previously in the 20 years she had been

engaged in the daycare business. After this incident happened

and before the issue regarding her license arose she had already

acted to ban any further field trips for three - year - old children

and had elected to hire a person to perform nothing but head

counts each day to make sure that the policy was carried out and

such an event never again occurred.

17. The evidence shows that the Petitioner's facility ha s

otherwise been operated in a quality manner , as shown by the

testimony of Kimberly Webb. Ms. Webb was an employee of the

Petitioner for some 15 years and was well aware of the

Petitioner's rules concerning conducting head counts of

children , doing " van sweeps " and the g eneral policies to ensure

child safety in the day - to - day operations of the care center.

18. Marjorie McGee is employed by Child Hood Development

Services and testified for the Petitioner. Ms. McGee went to

the daycare center on numerous occasions to moni tor the

Childhood Development Services Program and the Head Start

Program. Ms. McGee observed that Ms. Jones and the daycare

center staff provided quality child care. Any concerns she ever

had were immediately addressed and corrected by Ms. Jones or one

of the directors of the center. Ms. McGee , in fact , established

that the Petitioner's facility in one of the highest - rated

daycare centers in Marion County. This testimony is

corroborated by several parents who testified concerning the

operation of the d aycare center and by Juanita Thompson , who

works as a childhood curriculum specialist and over the years

had done consulting for the Petitioner in preparing curriculums .

She attested to the high quality care provided by the

Petitioner.

CONCLUSIONS OF LAW

19. 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. (2005).

20. The burden of persuasion rests on the Petitioner in

this case to prove en titlement to the license. Department of

Banking and Finance Division of Secur i ties and Investor

Pro tection v. Osborne Stern and Co. , 670 So. 2d 932, 934 (Fla.

1996) (wherein the court emphasized that while the burden of

producing evidence may shift betwee n parties in an application

dispute proceeding that the burden of persuasion remain upon the

applicant to prove entitlement to the license).

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

the Department may deny a license for violation of any provision

of Section s 402.301 through 402.319, Florida Statutes , or the

Rules adopted thereunder. Section 402.310(1)(a), states:

The Department or 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 §§ 401.301 - 402.319 or

rules adopted thereunder. However, whe re

the violation could or does cause death or

serious harm , the Department or local

licensing agency may impose an

administrati ve fine , not to exceed $500.00

per violation per day.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a) the

following factors shall be consid e red:

1 . The severity of the violation, includi ng

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 §§ 402. 3 01 - 402.319

have been violated.

2 . Actions t aken by the licensee to correct

the violation or to remedy complaints.

3 . Any previous violations of the licensee.

22. There is no question , in considering the standard

expressed in the language of this statute , that the violation is

a severe on e because N.B. can be considered to be injured and

indeed that the risk of serious harm or even death was posed by

the neglect which occurred , even though it was accidental and

unintentional. There were also previous violations on the part

of the licensee , albeit themselves not serious violations or

those which posed serious threat of actual or potential harm

under the ir circumstances. It is also true that the licensee,

by Ms. Joann Jones, took immediate action to correct t he problem

to ensure that such a n event never again will occur.

23. There is no question that Ms. Jones is a very caring

and generally competent provider of child care as operator of

the facility. When the paramedics came she assisted them and

rode in the ambulance to the hospital wi th N.B. She stayed at

the hospital to make sure that he was well taken care of and

took immediate steps to inform his family. Upon the immediate

alleviation of the crisis , from which N.B. recovered , she took

immediate steps to terminate the personnel at fault and to see

that no further field trips for children that young were taken .

S he also vowed as well to retain a person who would in the

future do nothing but head counts and van sweeps to make sure

that such an event never again occurred. Obviously, before this

step could be enacted she had her license suspended on an

emergency basis and the re - licensure denied , with operations of

the facility halted. It is somewhat curious that the evidence

reflects that the Respondent never made any contact with Jo ann

Jones after it began investigating the incident to ascertain

what her response to the incident was, what steps she took or

planned to take in the immediate future to avoid its ever

occurring again nor to find out what her knowledge of any facts

surroun d ing the incident might be.

24. Unfortunately, the violations that have occurred were

proven and indeed the Petitioner never contested that they

occurred. The Petitioner , in essence , attempted to explain

steps that she took or would take , if given the o pportunity by

remaining licensed , to see that the violations never occurred

again in the future. She also established that the violations

occurring in the past , before the subject incident , had been

corrected on the spot or before re - inspection , generally the

same day they were brought to her attention.

25. Nevertheless, one cannot change the fact that the

violations occurred and that the violation involving the child

being left in the heat in the vehicle was a severe and serious

violation. It is unfor tunate that even a well - meaning operator

such as Ms. Jones cannot und o the injury that has already

occurred to a child by claiming to have corrected the violation

that occasioned the injury or promising change d policies in the

future to ensure its never oc curring again. This is not a

substitute for correcting a problem before the injury to the

child ever occurred.

26. Accordingly, in view of the severity of the violation

of June 7, 2005, even though it was an isolated occurrence , and

even though it occu rred because the Petitioner's staff was

negligent and betrayed the Petitioner , it is appropriate to deny

the new one - year license which the Petitioner had applied - for as

of April 11, 2005. This conclusion is made in consideration of

the severity of this J une 7, 2005, incident, coupled with the

Petitioner's history of violations, which themselves were

relatively minor, had they not been compounded by the injury to

N.B. It is also true that there is no reason , based upon the

evidence , in this record , that t he Petitioner should not be re -

licensed at such time in the future as appropriate monitoring by

the Department ensures that operat ions at the daycare center can

be begun again with proper methods of operation and

documentation.

RECOMMENDATION

H aving consid ered 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, therefore,

RECOMMENDED that a final order be entered by the Department

of Chil dren and Family Services denying licensure to the

Petitioner, Oakcrest Early Education Center, Inc., effective

with the application of April 11, 2005, without prejudice to the

Petitioner re - applying for licensure in June 2006, in

conjunction with an approp riate monitoring program by the

Respondent Agency designed to ensure that all operational and

documentation provisions of the applicable statutes and rules

are complied with upon an ongoing basis.

DONE AND ENTERED this 1 4 th day of March , 200 6 , in

Tallahas see, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

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.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 1 4 th day of March , 200 6 .

C OPIES FURNISHED :

John J. Copeland , General Counsel

Depart ment 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, Flori da 32399 - 0700

Edward L. Scott, Esquire

Edward L. Scott, P.A.

409 Southeast Fort King Street

Ocala, Florida 34471

T. Shane DeBoard, Esquire

Department of Children and

Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

NOTICE O F 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.