05-003385 Department Of Children And Family Services vs. Sherlane Craig, D/B/A Sunniland Preschool And Nursery Status: Closed Recommended Order on Monday, February 27, 2006.

Summary: Numerous violations of staff-to-children ratios and lack of supervision justify the denial of a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3385

)

SHERLANE CRAIG, d/b/a SUNNILAND )

PRESCHOOL AND NURSERY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on January 4, 2006, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes (2005). The hearing locati on was the DeSoto Building,

1230 Apalachee Parkway, Tallahassee, Florida 32399 - 3060.

Charles C. Adams, Administrative Law Judge, conducted the

hearing.

APPEARANCES

For Petitioner: Lee Dougherty, Esquire

Department of Children

and Family Services

2639 North Monroe Street, Suite 104

Tallahassee, Florida 32399

For Respondent: Deveron Brown, Esquire

Brown and Associates, LLC

223 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Should Respondent have her application to renew her child

care facility license denied by Petitioner for reasons set forth

in the Administrative Complaint brought by Petitioner?

§§ 402.308 and 402.310, Fla. Stat. (2005).

PRELIMINARY STATEMENT

On July 6, 2005, Petitioner brought an Administrative

Complaint against Respondent as the owner of Sunniland Nursery

and Preschool for alleged violations at the child care facility

(the facil ity) as set forth in Sections 402.301 - 402.319, Florida

Statutes (2005), and Florida Administrative Code Chapter 65C - 22.

In addition to the "current violations," the Administrative

Complaint detailed what was described as a "past history of

violations" at the facility.

In correspondence received by Petitioner on July 27, 2005,

Petitioner requested an administrative hearing to contest

allegations in the Administrative Complaint. On August 4, 2005,

Respondent through counsel executed and served a petition

r equesting a formal hearing before the Division of

Administrative Hearings (DOAH). Fla. Admin. Code R. 28 - 106.201.

The petition by Respondent set forth issues of material fact in

dispute in relation to the "current violations," while admitting

paragraphs 1, 2, and 4 found at the beginning of the

Administrative Complaint.

On September 21, 2005, DOAH received a request by

Petitioner for assignment of an Administrative Law Judge to

conduct a formal proceeding and issue a Recommended Order.

Consistent with that request, the case was assigned to Diane

Cleavinger, Administrative Law Judge in DOAH Case No. 05 - 3385.

Later the case was transferred to the undersigned.

Initially the case was set to be heard December 8, 2005.

On Respondent's motion, the case was continued and heard on

January 4, 2006.

Petitioner filed a motion for judgment on the pleadings or

in the alternative to determine material facts in dispute based

on the pleadings. On December 20, 2005, an order was entered

denying that motion.

On Dec ember 30, 2005, Respondent filed an emergency motion

to continue the hearing. Petitioner filed a response in

opposition to the motion. On January 3, 2006, that motion was

denied by a written order.

Petitioner filed a motion for sanctions and for an ord er

for Respondent to pay witness fees. Respondent answered that

motion. At hearing, Respondent was ordered to pay the witness'

fees in dispute in full. No other forms of sanctions were

imposed. It was reiterated that the case would proceed to

hearing o n the scheduled date. These rulings and that

discussion are reflected in the hearing transcript which has

been prepared.

The present case proceeded with the knowledge of the court

case, State of Florida, Department of Children and Family

Services , Plaintiff, vs. Sherlane Craig, d/b/a Sunniland

Preschool and Nursery, Defendant in the Circuit Court of the

Second Judicial Circuit, in and for Leon County, Florida, Case

No. 2005CA3012 before Janet E. Ferris, Circuit Judge. In the

court case, an emerge ncy temporary injunction order had been

entered against that defendant enjoining the operation of the

facility. Judge Ferris went on in her order to state:

This injunction will be dissolved on motion

of the Plaintiff [Respondent] if the

Administrative Law Judge in DOAH 05 - 2285

[DOAH Case No. 05 - 3385] finds against

revocation of Plaintiff's [Respondent's]

childcare license.

At hearing, Petitioner presented Dannie Williams and Joseph

Alexander as its witnesses. Petitioner's Composite Exhibit

numbered 1 an d Exhibits numbered 2 and 3 were admitted.

Respondent testified and called Dinah Gallon and Joseph

Alexander as her witnesses. Respondent's Exhibits numbered 1

through 3, and Composite Exhibits numbered 4 and 5 were

admitted.

The hearing transcript was filed with DOAH on January 24,

2006. The parties timely submitted proposed recommended orders,

which have been considered in preparing the Recommended Order.

FINDINGS OF FACT

1. The Department of Children and Family Services has

jurisdiction over Re spondent by virtue of the provisions set

forth in Sections 402.301 - 402.319, Florida Statutes (2005).

2. The Respondent, Sherlane Craig, is licensed to operate

Sunniland Nursery and Preschool, as a child care facility in

compliance with Chapter 402, Flo rida Statutes (2005), and

Florida Administrative Code Chapter 65C - 22.

3. Petitioner is the administrative agency of the State of

Florida, charged with the duty to enforce and administer the

provisions of Chapter 402, Florida Statutes (2005).

4. Pet itioner issued a child care facility certificate of

license to Respondent for the Sunniland Nursery and Preschool

effective June 1, 2004, through June 1, 2005.

5. Petitioner issued Respondent a child care facility

certificate of license that was provisi onal for the period

June 1, 2005, through August 1, 2005. The provisional license

was sent to Respondent on June 7, 2005, and was received by

Respondent later in June 2005.

6. In addition to the license itself, the transmittal

letter to Respondent stat ed:

Enclosed is the provisional license from

the Department of Children and Families to

operate a childcare facility. A provisional

license is being issued at this time based

on the facility's continued non - compliance

with the state's minimum standards.

Specifically the facility was cited five

times during the last licensing year for

non - compliance regarding the maintenance of

fall zone material on the playground. The

Department has offered suggestions on

creating a framing system to hold fall zone

mat erial in place. As of today the

Department has been unable to verify

compliance.

This license is valid until August 1, 2005.

An annual license will be issued when all of

the above requirements have been met. The

license is not transferable to another owner

or any other location. If at some point in

the future you discontinue operation of your

facility, we would appreciate you notifying

our childcare licensing office.

* * *

7. In advance of the decision to provide Respond ent with a

provisional license, Petitioner had performed inspections of the

facility on May 2, 18, and 24, 2005. On June 8 and June 10,

2005, additional inspections were made at the facility.

8. The May 18 and May 24, 2005 inspections revealed

problems with the fall zone on the playground that was the

subject of the letter informing Respondent that she had been

issued a provisional license. The May 24, 2005, investigative

report referred to as a reinspection checklist made mention of

the citation for t he fall zone during previous inspections.

9. The June 8, 2005, inspection continued to note a

problem with the playground area and the fact that Petitioner

had issued Respondent a provisional license for continued non -

compliance by the failure to maintain the proper cover or

protective surface in the fall zone area on the playground .

10. The June 10, 2005, report on the inspection did not

mention the fall zone on the playground . More importantly,

Respondent testified without being refuted that the fall z one

area on the playground was corrected on a date beyond June 8,

2005, the more recent inspection date noting non - compliance for

conditions on the playground . To that end, during a visit on

June 29, 2005, Dinah Gallon and Kathy Schmitz Petitioner's

emplo yees found the conditions of the outdoor play area with the

addition of the sand to be satisfactory. Dinah Gallon is a

license counselor for Leon County, employed by Petitioner.

11. Respondent also presented evidence in the form of an

invoice from Es posito's Nursery concerning the purchase of "2/3

cu yd of coarse sand" and for its installation. That invoice

was dated June 22, 2005.

12. On July 8, 2005, Respondent wrote Joseph Alexander,

Childcare Services Supervisor, District Two, Department of

Ch ildren and Family Services, concerning the status of the

playground called into question under the terms of the

provisional license. That correspondence was received at

District Two on July 11, 2005. It stated:

Responding to previous instruction from y our

office to pad our playground with sand in an

effort to add protection, in the way of

ground cushioning, for our attendants; I

have five loads of large gravel, beach sand

delivered and spread through our outdoor

play area.

In the instruction I receiv ed it was

suggested that barriers be placed around the

areas where sand was necessary in an attempt

to prevent its erosion. Upon purchasing the

large gravel, beach sand from Esposito's,

I was informed that barriers for this

particular sand was not neces sary due to the

fact that the sand would absorb the water

therefore would not wash away.

* * *

13. Although Respondent explained the difficulty

experienced in providing resilient and proper cover for the fall

areas near the play ground equipment, she has not denied the lack

of compliance over time with the requirement to maintain a safe

fall zone by providing appropriate cover material in those

areas. In response to the problem, the type of sand more

recently placed has been less prone to erode.

14. Aside from the lack of adequate maintenance of fall

zone material on the playground , it is the failure to meet child

ratio standards and the failure to provide adequate supervision

as observed in the more recent inspections that has led

Petitioner to bring the Administrative Complaint, which could

lead to the denial of the annual license renewal. The

Administrative Complaint is also drawn in recognition of the

past history by the Respondent of violations of various kinds.

15 . In the category of what is described in the

Administrative Complaint as "current violations," the May 2,

2005, inspection of the facility revealed non - compliance with

Section 402.305(4), Florida Statutes, and Florida Administrative

Code Rule 65C - 22.001( 4)(a) and (b). In particular, the one 1:4

ratio of staff to children for 0 - to - 12 - month - old children

required was not met, in that the ratio found was 1:6. The two -

year - old category which called for a 1:11 ratio was not complied

with, in that the ratio wa s 1:12 at the facility. Two of the

three rooms in which the children were found were out of

compliance with the ratio requirement. These problems were

corrected on the date of inspection.

16. On May 18, 2005, in a return visit to the facility,

the ins pection revealed continuing problems in relation to staff

to children ratios under the statutory and rule provisions that

have been previously described. In this visit, the 0 - 12 month

category calling for a ratio of 1:4 was in actuality 1:5. The

mixed gr oup involving 1 - to - 5 - year - olds was not in compliance in

that it had a ratio 2:23. In a second observation involving the

0 - to - 12 - months - age group, the ratio was then 1:6, instead of the

called for 1:4. Every classroom was found out of compliance

with the needed ratio upon this re - inspection. The problem was

corrected when additional staff arrived to cover the classes.

17. On May 24, 2005, when the facility was inspected there

were continuing ratio problems contrary to the statute and rule.

Among the observations, there was one in the initial contact

calling for a 1:4 ratio for infants. The ratio found was 1:5.

A mixed group of one to five - year - olds calling for a ratio of

1:6, in fact had a ratio of 2:21. All rooms observed were out

of compliance wi th the ratio standards during the first

observation. Upon the last observation of the rooms,

corrections had been made and the rooms were in compliance. On

that same visit, the facility was not compliant with Florida

Administrative Code Rule 65C - 22.001(5 )(a), (b), and (d). It was

noted that there was "A classroom of two - year - old children that

had no direct supervision. There were three napping in a room

and no adult was present." These conditions related to

supervision were corrected at the time of the inspection.

18. On June 8, 2005, when an inspection was made at the

facility there was a problem found in relation to Florida

Administrative Code Rule 65C - 22.001(5)(a), (b), and (d). It was

observed that the children had gone to Levy Park with one ad ult

present, when an additional adult was needed to supervise the

outing.

19. On June 10, 2005, at the next inspection of the

facility continuing problems with ratios were found contrary to

the statute and rule. On this occasion, two of the three

class rooms observed were out of compliance during the initial

observation. During a second observation, the infant room

remained out of compliance with the ratio standards. The

initial observation for the 0 - to - 12 - month - old infants showed a

ratio of 1:5, when the ratio called for was 1:4. On the second

observation for that age group, the ratio found was 1:4. There

was also a problem related to non - compliance with Florida

Administrative Code Rule 65C - 22.001(5)(a), (b), and (d), in that

"Direct supervision of c hildren in the [2 year old] group was

inadequate in that [while the provider of the two year old group

assisted children in the bathroom, the remainder of her [sic]

was left unattended]."

20. By way of history, as far back as July 31, 2000,

problems wer e observed at the facility in relation to non -

compliance with standards pertaining to direct supervision.

Over time, problems of compliance with ratio standards were also

found. A similar pattern was found on August 4, 2000,

December 8, 2000, August 7, 2 001, April 2, 2002, August 6, 2002,

January 30, 2004, and April 27, 2005. Other forms of violation

were also found on those dates and additional dates as well.

21. Significantly, in the past, formal discipline has been

imposed against Respondent. On A pril 8, 2002, a $100.00 fine

was imposed against Respondent by the Leon County Health

Department, predecessor to Petitioner. The basis for that

administrative fine was "Your center was found operating over

capacity with 46 children (19 children at the cen ter and 26

children at Levy Park). Your current capacity is 45." That was

as of August 10, 2001. On April 2, 2002, a visit had also been

made in which it was discovered that the number of children

present was 48 as opposed to the capacity of 45.

22. On June 3, 2002, the Leon County Health Department

imposed a $50.00 fine associated with the May 28, 2002,

inspection in which it was found that one of the rooms had

children in which the ratio of staff to children was not in

compliance.

23. On October 31, 2002, the Leon County Health Department

imposed a $100.00 fine premised upon non - compliance with ratio

standards on September 30, 2002.

24. On February 6, 2004, Petitioner brought an

Administrative Complaint against Respondent. This was premised

upon non - compliance with ratio standards on January 30, 2004,

and February 6, 2004. A $1,000.00 fine was imposed, consistent

with the proposed administrative fine suggested in the

Administrative Complaint.

25. In each instance recounted, the administra tive fines

were paid by the Respondent.

26. Petitioner's Composite Exhibit numbered 1, which sets

out the inspection reports during the period contemplated by the

overall Administrative Complaint, demonstrates that Petitioner

through its employees explained the nature of the problems to

Respondent and provided her copies of the inspection reports.

By these arrangements, Respondent was reminded of the need to

comply with the requirements related to the license. Given the

findings made during the in spections, those reminders were

frequently stated, to the extent that Respondent could not

reasonably contend that she was unaware of her obligation to

comply with the law.

27. Concerning the internal process within the Petitioner

Agency as to the class ification of violations, there is no

formal rule. The response to the violations from the policy

perspective is to perceive the staff ratio and supervision

issues as being more serious than other forms of violations.

Class 1 violations are those posing a more immediate threat to

safety and harm to the children in a facility. Under

Petitioner's internal policy staff ratio and supervision,

violations fall within Class 1.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter and parties pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2005).

29. Petitioner through the Administrative Complaint

intends to take action against Respondent that is penal in

nature. Therefore the proof necessary to establish the "current

violations" must be by clear and convincing evidence. See

Department of Banking and Finance, Division of Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); and Section 120.57(1)(j), Florida Statutes (2 005). Clear

and convincing evidence is defined in In re: Davey , 645 So. 2d

398,404 (Fla. 1994), quoting, with approval from Slomowitz v.

Walker , 429 So. 2d 797 (Fla. 4th DCA 1983).

30. Respondent is the owner of Sunniland Preschool and

Nursery, a child care facility operated under requirements set

forth in Sections 402.301 - 402.319, Florida Statutes (2005).

31. As a licensee, Respondent must adhere to licensing

standards established by Petitioner under authority set forth in

Section 402.305, Flo rida Statutes (2005). Those standards are

designed to address, according to Section 402.305(1)(a), Florida

Statutes:

(a) The health, sanitation, safety, and

adequate physical surroundings for all

children in child care.

(2) The health and nutrition of all

children in child care.

(3) The child development needs of all

children in child care.

32. Minimum standards for child care facilities are

promoted by rule adoption in accordance Section 402.305(1)(c),

Florida Statutes (2005).

33. More sp ecifically, Section 402.305(4)(a), Florida

Statutes (2005), establishes mandatory staff - children ratios, in

association with the rule adoption process wherein it is stated:

(4) STAFF - TO - CHILDREN RATIO. --

(a) Minimum standards for the care of

children in a licensed child care facility

as established by rule of the department

must include:

1. For children from birth through 1 year

of age, there must be one child care

personnel for every four children.

2. For children 1 year of age or older, but

und er 2 years of age, there must be one

child care personnel for every six children.

3. For children 2 years of age or older,

but under 3 years of age, there must be one

child care personnel for every 11 children.

4. For children 3 years of age or older ,

but under 4 years of age, there must be one

child care personnel for every 15 children.

5. For children 4 years of age or older,

but under 5 years of age, there must be one

child care personnel for every 20 children.

6. For children 5 years of ag e or older,

there must be one child care personnel for

every 25 children.

7. When children 2 years of age and older

are in care, the staff - to - children ratio

shall be based on the age group with the

largest number of children within the group

34. Flori da Administrative Code Rule 65C - 22.001(4)

pertaining to staff - to - children ratios states:

(a) The staff - to - children ratio, as

established in s. 402.305(4), F.S., is based

on primary responsibility for the direct

supervision of children and applies at all

times while children are in care.

(b) Mixed Age Groups

1. In groups of mixed age ranges, where

children under 1 year of age are included,

one staff member shall be responsible for no

more than 4 children of any age group.

2. In groups of mixed age ranges, where

children 1 year of age but under 2 years of

age are included, one staff member shall be

responsible for no more than 6 children of

any age group.

35. Allegations in the Administrative Complaint are

related to problems with staff - to - children ratios being

maintained.

36. Another violation alleged in the Administrative

Complaint relates to the adequacy of supervision. Florida

Administrative Code Rule 65C - 22.001(5) in discussing the

requirements for supervision states:

(a) Direct supervision means watching and

directing children's activities within the

same room or designated outdoor play area

and responding to each child's need. Child

care personnel at a facility must be

assigned to provide direct supervision to a

specif ic 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 responsible for

the supervision of the children in care and

capable of responding to emergencies, and

are accountable for children at all times,

which includes when children are separated

from their groups.

(b) During nap time, supervision means

sufficient staff in close proximity, within

sight and hearing of all the children. All

other staff to meet the r equired staff - to -

children ration shall be within the same

building on the same floor and be readily

accessible and available to be summoned to

ensure the safety of the children.

* * *

(d)1. In addition to the number of staff

required to meet the staff to child ratio,

one additional adult must be present on all

field trips away from the child care

facility, for the purpose of safety, to

assist in providing direct supervision.

* * *

3. A telephone or other means of

communication shall be available to staff

responsible for children during all field

trips. Cell phones, two - way radio devices,

citizen band radios, and other means of

instant communication are accepted.

37. The final category of violation contemplated in

the Administrative Complaint relates to the playground area.

The requirements set forth in Florida Administrative Code Rule

65C - 22.002(9)(b)3, state:

3. Permanent playground equipment must have

a ground cover or other protective surface

under the equipment which provides

resilience and is maintained to reduce the

incidence of injuries to children in the

event of falls.

38. The "current violations" contemplated by the

Administrative Complaint in the categories set f orth above

allegedly took place on May 2, 18, and 24 and June 8 and 10,

2005.

39. Generally stated, the Administrative Complaint under

"current violations" alleges:

26. A subsequent inspection on May 2, 2005

revealed that the facility remained out of

compliance regarding sufficient staff to

child ratio standards.

27. Another subsequent inspection on

May 18, 2005 revealed that the facility

remained out of compliance regarding staff

to child ratio standards and maintenance of

fall zone material o n the facility

playground.

28. On May 24, 2005 during a licensing re -

inspection, your facility was found out of

compliance with supervision, ratio, and

outdoor equipment safety standards.

* * *

29. On June 8, 2005 during a complaint

investigation, your facility was found out

of compliance with supervision standards.

* * *

30. On June 10, 2005 during a complaint

investigation, your facility was found out

of compliance with supervision and ratio

stan dards.

40. Pertaining to the importance of any violation

described in the Administrative Complaint, Section 402.308,

Florida Statutes (2005), deals with the issuance of licenses for

a child care facility wherein it states:

(1) ANNUAL LICENSING. -- Ever y child care

facility in the state shall have a license

which shall be renewed annually.

* * *

(3) STATE ADMINISTRATION OF LICENSING. -- In

any county in which the department has the

authority to issue licenses, the following

proc edures shall be applied:

(a) Application for a license or for a

renewal of a license to operate a child care

facility shall be made in the manner and on

the forms prescribed by the department. The

applicant's social security number shall be

included on the form submitted to the

department. Pursuant to the federal

Personal Responsibility and Work Opportunity

Reconciliation Act of 1996, each applicant

is required to provide his or her social

security number in accordance with this

section. Disclosure of social security

numbers obtained through this requirement

shall be limited to the purpose of

administration of the Title IV - D program for

child support enforcement.

(b) Prior to the renewal of a license, the

department shall reexamine the child care

fa cility, including in that process the

examination of the premises and those

records of the facility as required under s.

402.305 , t o determine that minimum standards

for licensing continue to be met.

(c) The department shall coordinate all

inspections of child care facilities. A

child care facility is not required to

implement a recommendation of one agency

that is in conflict wit h a recommendation of

another agency if such conflict arises due

to uncoordinated inspections. Any conflict

in recommendations shall be resolved by the

secretary of the department within 15 days

after written notice that such conflict

exists.

(d) The d epartment shall issue or renew a

license upon receipt of the license fee and

upon being satisfied that all standards

required by ss. 402.301 - 402.319 have been

met. A license may be issued if all the

screening materials have been timely

submitted; however, a license may not be

issued or renewed if any of the child care

personnel at the applicant facility have

failed the screening requi red by ss.

402.305 (2) and 402.3055 .

41. The last annual license held by Respondent expired

June 1, 2005. Its renewal depended on a consideration of the

merits of that renewal. It was not merely a matter of having

the Petitioner perform a ministerial act. Respondent was not

granted an annual license after June 1, 2005. Instead,

Petitioner exercised its authority under Section 402.309,

Florida Statutes (2005) to grant the Respondent a provisional

license. That section states:

(1) The local licensing agency or the

department, whichever is authorized to

license child care facilities in a county,

may issue a provisional license to

applicants for a license or to licensees who

are unable to conform to all the standards

provided for in ss. 402.301 - 402.319.

(2) No provisional license may be issued

unless the operator or owner makes adequate

provisions for the health and safety of the

child. A provisional license may be issued

if all of the screening materials have been

timely submitted; however, a provisional

license may not be issued unless the child

care facility is in compliance with the

requirements for screening of child care

personnel in ss. 402.305 and 402.3055 .

(3) The provisional license shall in no

event be issued for a period in excess of 6

months; however, it may be renewed one time

for a period not in excess of 6 months under

unusua l circumstances beyond the control of

the applicant.

(4) The provisional license may be

suspended if periodic inspection made by the

local licensing agency or the department

indicates that insufficient progress has

been made toward compliance.

42. A t the time the provisional license was issued,

Petitioner had determined that Respondent had not complied with

the requirement for maintenance of fall zone material on the

playground which relates to Florida Administrative Code Rule

65C - 22.002(9)(b)3. in i ts expectation that the groundcover or

other protective surface beneath the playground equipment be

resilient and maintained to reduce problems of injuries to

children if they fell from the equipment.

43. Respondent remedied the problem with the fall zo ne.

Had that been the only concern, Petitioner would have been in a

position to convert the Respondent's status from holder of a

provisional license to an annual license but that was not the

only problem. On the dates that have been described under the

c ategory "current violations" to the Administrative Complaint

and as discussed in the Findings of Fact, Respondent had

numerous ratio problems of staff to children in violation of

Section 402.305(4), Florida Statutes (2005), and Florida

Administrative Code Rule 65C - 22.001(4), as well as problems with

supervision in violation of Florida Administrative Code Rule

65C - 22.001(5), holding over from the period of the end of the

annual license that expired on June 1, 2005, and continuing

through June 10, 2005. Thos e violations were similar to

violations found in the past, in a setting in which Respondent

had been fined on numerous occasions.

44. Under the circumstances, Petitioner is empowered to

deny Respondent a further child care license. This authority is

fo und in Section 402.310(1)(a), Florida Statutes (2005),

allowing denial for violation of statutory provisions set forth

in Sections 402.301 through 402.319 or rules adopted thereunder.

45. In determining the appropriate response to

Respondent's failure to comply with the statute and rules

related to staff to children ratios and supervision, Section

402.310(1)(b), Florida Statutes (2005), offers guidance where it

states:

(b) In determining the appropriate

disciplinary action to be taken for a

violation a s provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation, 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

actu al or potential harm, and the extent to

which the provisions of ss. 402.301 - 402.319

have been violated.

2. Actions taken by the l icensee to correct

the violation or to remedy complaints.

3. Any previous violations of the licensee.

46. Here there was the probability of harm to the health

and safety of the children in Respondent's care given the nature

of the violations. Respon dent made corrections when the

violations were discovered in the category of "current

violations," but the pattern of violations persisted. There had

been numerous violations of this kind in the past.

RECOMMENDATION

Upon the consideration of the f acts found and the

conclusions of law reached, it is

RECOMMENDED:

That a Final Order be entered denying Respondent's child

care facility license.

DONE AND ENTERED this 27th day of February, 2006, in

Tallahassee, Leon County, Florida.

S

_____________ ______________________

CHARLES C. ADAMS

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 the Clerk of the

Division of Administrative Hearings

this 27th day of February, 2006.

COPIES FURNISHED :

Lee Dougherty, Esquire

Department of Children

and Family Services

2639 North Monroe Street, Suite 104

Tallahassee, Florida 32399

Deveron Brown, Esquire

Brown and Associates, LLC

223 East Virginia Street

Tallahassee, Florida 32301

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Slye, Acting General Counsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

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.