06-002272 Department Of Children And Family Services vs. Youth In Action, Inc. Status: Closed Recommended Order on Monday, January 29, 2007.

Summary: Respondent had numerous violations over several years; two provisional license periods; and one administrative fine. Respondent continued to have staff-to-child ratio deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 06 - 2272

)

YOUTH IN ACTION, INC. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on October 3 and November 16, 2006, in Panama City, Florida,

before Susan B. Harrell, a designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitio ner: Walter A. Otto, Esquire

Department of Children and

Family Services

2639 North Monroe Street

Building A, Suite 140

Tallahassee, Florida 32 399

For Respondent: Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's license to

operate a child care facility should be revoked for alleged

violations of Chapter 402, Florida Statutes (2002 through 2005) , 1

and Florida Administrative Code Chapter 65C - 22 as set forth in

the Administrative Complaint.

PRELIMINARY STATEMENT

On May 25, 2006, Petitioner, Department of Children and

Famil y Services (Department), filed an Administrative Complaint

against Respondent, Youth In Action Incubator Center for

Excellence (Youth in Action), seeking to revoke Youth in

Action's license to operate a chi ldcare facility for numerous

violations of Chapter 402, Florida Statutes, and Florida

Administrative Code Chapter 65C - 22. Youth in Action requested

an administrative hearing, and, on June 26, 2006, the case was

forwarded to the Division of Administrative Hearings for

assignment of an Administrative Law Judge. The case was

originally assigned to Administrative Law Judge Ella Jane P.

Davis, but was transferred to Administrative Law Judge Susan B.

Harrell to conduct the final hearing.

The final hearing was s cheduled for August 7, 2006. Youth

in Action filed a motion for continuance, which was granted by

order rescheduling the final hearing for September 1, 2006.

Youth in Action filed a second motion for continuance, which was

granted. The final hearing was commenced on October 3, 2006,

but was not completed on that date. The final hearing was

reconvened on November 16, 2006.

At the final hearing, the Department called the following

witnesses: Lee Anne Case, Jason Kesterman, Dia Green, Sherrie

Gainer, Jose ph Alexander, and Shirley McCleary. Petitioner's

Exhibits A through Y, AAA, and BBB were admitted in evidence.

At the final hearing, Youth in Action called Shirley McCleary,

Cynthia Mitchell, and Linda Faye Baker as its witnesses. Youth

in Action did no t submit any exhibits for admission in evidence.

No transcript of the final hearing was filed. The parties

timely submitted their P roposed R ecommended O rders , which have

been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Departm ent is the state agency responsible for

licensing and disciplining child care facilities. In carrying

out its responsibilities, the Department conducts routine

inspections of child care facilities, as well as inspections

based on any complaints concerning a child care facility.

2. Youth in Action is a child care facility located in

Panama City, Florida.

3. On February 5, 2003, Dia Green, who at that time was

employed by the Department, conducted an inspection of Youth in

Action based on a complaint. Ms. Green observed children in the

two, three, and four - year - old age groups going to the restroom

without direct supervision. A child at Youth in Action

scratched his nose while going down the slide. Staff at Youth

in Action did not document the incident on the day that it

occurred. The facility did not have a staff person trained in

first aid present during all operating hours.

4. On March 10, 2003, Ms. Green made a routine inspection

of Youth in Action. She found that Youth in Action had no

documentatio n to show that monthly fire drills had been

completed.

5. On January 6, 2004, Ms. Green conducted a routine

inspection of Youth in Action. Again, she found that Youth in

Action lacked documentation to show that monthly fire drills had

been completed. Th ere were broken furniture and toys that

needed to be removed from the facility. The immunization

records for some of the children being cared for at the facility

were incomplete.

6. By letter dated January 22, 2004, the Department

advised the owner/opera tor of Youth in Action, Sherlene McClary,

that Youth in Action's license was being changed to provisional

for failure to have a director meeting the credentialing

requirements of Subsection 402.305(2)(f), Florida Statutes

(2003). The provisional license w as effective January 2, 2004,

through June 1, 2004.

7. On April 28, 2004, Lee Anne Case, a child licensing

counselor employed by the Department, inspected Youth in Action.

She found the staff - to - child ratio was not sufficient for

different age groups. There was one staff person for seven

children in the 0 to 12 - month - old group. There was one staff

person for seven children in the one - year - old group. There was

one staff person for nine children in another one - year - old

group. There was one staff perso n for 16 children in the two -

year - old group. Ms. Case observed that , when the children were

coming in from the playground , Youth in Action staff were

leaving a child on the playground. The cook for the facility

noticed the child and brought it to the att ention of staff.

Ms. Case found that areas in the facility were not in good

repair. The carpet was dirty, had holes , and was fraying on the

edges, creating tripping hazards. The thermostat was hanging by

wires from the wall, and, when the thermostat wa s touched, the

lights would flicker. There was a five - inch hole in the wall

leading directly to the outside. The floor mats on which the

children napped were torn. The bathrooms lacked supplies such

as paper towels, soap, and toilet paper.

8. During th e April 28, 2004, inspection, Ms. Case found

that diaper changing in the infant room was being done on a

surface that was not impermeable. The container for soiled

diapers was not covered and was accessible to children.

Ms. Case also observed indoor and outdoor equipment which w as

not safe. Inside the facility, a changing table was broken , the

power cord to a portable radio was accessible to children , and

the air conditioning unit was not properly mounted , leaving

sharp corners exposed. On the playgrou nd, there were exposed

roots, which created a tripping hazard; broken toys were left in

the area; and a picnic table was pushed up to the fence negating

the required four - foot height requirement for the fence.

9. Additionally , during the April 28, 2004, i nspection,

Ms. Case found that there was a lack of documentation to show

that some of the staff members had completed the required

40 - Hour Introductory Child Care Training. Personnel records for

some of the staff were missing.

10. The Department gave Youth in Action until May 5, 2004,

to correct the deficiencies in the torn and dirty carpet, the

thermostat, the hole in the wall, the debris and broken toys on

the playground, the picnic table pushed against the fence, the

air conditioning unit, the power cord to the radio, the

personnel records, and the training requirements. On May 7,

2004, Youth in Action was re - inspected to determine if the

deficiencies had been corrected. The carpet had not been

repaired or cleaned. The hole in the wall had been fi lled

loosely with paper towels. The playground still contained

debris and leaves were piled next to the fence, eliminating the

four - foot fence requirement. Sleeping mats were torn. The

diaper changing in the infant room was being done on an

impermeable surface. The deficiencies related to the changing

table and the air conditioning unit had not been corrected. The

deficiencies in the training documentation and the personnel

records also remained uncorrected. Youth in Action was given

until May 10, 200 4, to make the necessary corrections.

11. It was also noted during the May 7, 2004, inspection

that the facility had a staff - to - children ratio deficiency. One

staff person was observed with seven infants. One staff person

was with seven children in th e room for one - year - old children.

In a second room with one and two - year - old children, there was

one staff person for seven children. In one group of three and

four - year - old children there were 17 children and one staff

person.

1 2 . On May 13, 2004, anot her inspection was made of Youth

in Action to determine if the deficiencies found on May 5, 2004,

had been corrected. On May 13, 2004, sleeping mats in the one -

year - old room were torn and needed to be replaced; the diaper

changing pad was still torn; and the sharp corners of the air

conditioner had not been eliminated.

1 3 . On August 11, 2004, Jason Kesterman, an employee of

the Department, inspected Youth in Action. He found that the

facility's plan of scheduled events was not posted in a place

accessibl e to parents. Paper towels or air dryers were not

available and within reach of the children in the bathroom next

to the one - year - olds' room. Some of the staff of the facility

had not completed the 40 - hour mandatory training course within

the allotted ti me frame, and some lacked the ten - hour training

course. One of the staff did not have documentation of the

initiation of training within the allotted time. The first aid

kit for the facility lacked moist wipes and rubber gloves.

1 4 . On November 12, 2004 , Ms. Case inspected Youth in

Action. Numerous deficiencies were noted. There was an

insufficient ratio of staff to children. There was one staff

person for 16 children when there should have been two staff

members. During nap time, there was insuffici ent staff

accessible for the one - year - olds. Ms. Case observed a heavy -

duty bathroom cleaner that was accessible to children. The

floor mats for napping were torn. Staff did not clean and

disinfect the diaper changing surface after each use. The pad

on the diaper changing table was torn. The ground cover within

the fall zone of the swings was not maintained. A rocking fish

toy had sharp and jagged handles. One of the staff did not have

documentation of one of the required ten - hour training courses.

T he director of the facility was not onsite a majority of the

hours of operation. The first aid kit for the facility did not

contain a thermometer, moistened wipes, and a guide on first

aid. The facility did not have a staff member trained in

current infa nt and child cardiopulmonary resuscitation present

during all hours of operation. Diaper ointment was dispensed

without written authorization from the parent. Some of the

children did not have documentation of a student health

examination. Personnel rec ords for some of the staff were

incomplete.

1 5 . On December 2, 2004, the Department issued an

Administrative Complaint assessing a $500 fine against Youth in

Action for failure to supervise a 19 - month - old child who walked

away from the facility. Youth in Action paid the $500 fine.

1 6 . On January 27, 2005, the Department notified Youth in

Action that its license was being placed on provisional status

effective December 1, 2004, for repeated violations of Florida

Administrative Code Chapter 65C - 22. The pr ovisional license was

to remain in effect until June 1, 2005. The Department advised

the facility that inspections in addition to the routine

inspections would be made of the facility to monitor the

facility's compliance with Florida Statutes and the Flor ida

Administrative Code. The facility was notified that "failure to

immediately correct documented violations during your facility's

inspections will leave the [D]epartment no alternative but to

seek revocation of your license."

1 7 . Sherrie Gainer, an em ployee of the Department,

inspected Youth in Action on January 19, 2005. She found

cleaning supplies that were accessible to children as well as

knives in a lower kitchen cabinet that was accessible to

children. This deficiency was corrected at the time of the

inspection. Ms. Gainer found that the d irector's file was not

located at the facility. Some of the children's files were

incomplete. Some of the personnel files for staff were

incomplete. Youth in Action was given until January 31, 2005,

to corr ect the deficiencies.

1 8 . On March 2, 2005, Ms. Gainer inspected Youth in

Action. She found that there was a deficiency in the staff - to -

child ratio. One group of children had seven three a nd four -

year - old children and one one - year - old child. Such a mix

required the supervision of two staff and only one staff was

supervising.

1 9 . Ms. Gainer inspected Youth in Action on March 22,

2005. She found that the facility did not have complete records

for some of the child care personnel.

20 . In response to a complaint, Ms. Gainer inspected Youth

in Action on May 4, 2005. She found a staff - to - child ratio

deficiency. There should have been two staff persons for eight

children, but there was only one staff person supervising the

children. She observed that th ere was an uncovered vent in the

ceiling of the bathroom that allowed rain to enter the facility

and that the toilet seats were loose.

2 1 . Ms. Gainer inspected Youth in Action on October 11,

2005. She found that the facility did not have documentation to

show completion of a five - hour literacy training course by

June 30, 2005, for staff hired on or before December 31, 2004.

Additionally, records or copies of records were not being

maintained at the facility for review by the Department. Files

were bein g maintained across the street from the facility.

2 2 . On November 14, 2005, Ms. Gainer again inspected Youth

in Action. A bathroom light did not work. Cleaning supplies in

the kitchen were accessible to the children. Bedding did not

fit against the cri b, leaving a big gap. The bedding was dirty

and brown in color. Several sheets found on the infant beds

were badly stained.

2 3 . On November 29, 2005, Ms. Gainer re - inspected Youth in

Action. Cleaning supplies in the kitchen were accessible to the

child ren. A radio cord was hanging within reach of the children

in the toddlers' room.

2 4 . Ms. Gainer inspected Youth in Action on December 20,

2005. There was a deficiency in the staff - to - children ratio.

Two staff were needed for five children in the infan t group, and

only one staff person was supervising the five children.

Ms. Gainer observed that the white lattice by the walkway was

coming undone.

2 5 . On February 23, 2006, Ms. Gainer inspected Youth in

Action and noted a staff - to - children ratio deficie ncy. There

was one staff person supervising seven children, consisting of

four one - year - olds and three two - year - olds. Two persons were

required to supervise that particular age group.

2 6 . Based on a complaint, Ms Gainer made an inspection of

Youth in Ac tion on March 1, 2006, and she observed another

staff - to - children ratio violation. One staff person was present

with 18 children, three of whom were one - year - old and 15 of whom

were two and three - year - old.

2 7 . Based on another complaint, Ms. Gainer made an

inspection of Youth in Action on March 13, 2006. She found

there were 13 children in one room watching television with one

staff person. There were seven one - year - old children in with a

group of two, three, and four - year - old children.

2 8 . On April 12 , 2006, Ms. Gainer was advised by an

employee of Youth in Action that the director of the facility

was employed full time by the local school district and was not

at the facility a majority of the operating hours.

2 9 . On April 13, 2006, Ms. Gainer inspect ed Youth in

Action and found that the emergency plan was not posted. She

observed a volunteer left alone supervising three one - year - old

children in a classroom.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the par ties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).

31 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finan ce v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

32 . Subsection 402.305(4), Florida Statutes, requires the

Department to adopt minimum staff - to - child ratios for the care

of children in licensed child care facilities and provides:

(a) Minimum st andards 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 chil dren 1 year of age or older,

but under 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 child ren.

6. For children 5 years of age 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

ration shall be based on the age group with

the largest number of children within the

group.

33 . The Department has adopted Florida Administrative Code

Rule 65C - 22.001 (4) and (5) dealing with staff - to - children

ratios and supervision. The rule provides:

(4) Ratios

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

establis hed in Section 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 mo re than 6 children of

any age group.

(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 child's need. Child

care personnel at a faci lity must be

assigned to provide direct supervision to a

specific group of children, and be present

with that group of children at all

times. . . .

(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 required staff - to -

children ratio 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. Nap time

supervision as descr ibed in this section,

does not include supervision of children up

to 24 months of age, who must be directly

supervised at all times.

3 4 . On numerous inspections, Department employees found

Youth in Action to be in violation of the required staff - to -

child ren ratios. On February 5, 2003, the facility had

insufficient staff to supervise a group of two - year - old children

and a group of three - year - old children. Additionally, two,

three, and four - year - old children were allowed to go to the

restroom without dir ect supervision. On April 28, 2004, there

was insufficient staff to supervise a group of infants, two

groups of one - year - old children, and a mixed group of children

consisting mainly of two - year - old children. On May 7, 2004,

Youth in Action failed to hav e sufficient staff to supervise a

group of infants, a group of one - year - old children, a mixed

group of one and two - year - old children, and a group of three and

four - year - old children , with the majority being three years of

age. On November 12, 2004, Youth in Action had one staff person

supervising a group of 16 children, and two staff members were

required for adequate supervision. Additionally, on

November 12, 2004, there was insufficient staff to supervise a

group of one - year - old children along with a g roup of three and

four - year - old children. On March 2, 2005, Youth in Action had

one person supervising a group of seven three and four - year - old

children and one one - year - old child, and two persons were

required to supervise that mixed age group. On May 4 , 2005,

Youth in Action had one staff person supervising eight children,

when two persons were required for that age group. On

December 20, 2005, there was one staff person to supervise five

infants. On February 23, 2006, one staff person was supervisin g

seven children, and two persons were required to supervise that

number of children. On March 1, 2006, one staff person was

supervising 18 children, consisting of three one - year - olds, and

15 two and three - year - olds. On March 13, 2006, one staff person

w as supervising a group of 13 children, consisting of seven one -

year - olds and other children from two to four years of age.

3 5 . Subsection 402.305(5), Florida Statutes, requires the

Department to adopt rules setting forth standards for the

physical facilit ies of child care centers. The Department has

adopted Florida Administrative Code Rule 65C - 22.002, which sets

forth the standards for the physical environment for a child

care facility and provides:

(1) General Requirements.

(a) All child care faci lities must be in

good repair, free from health and safety

hazards, clean, and free from vermin

infestation. . . .

(b) All areas and surfaces accessible to

children shall be free of toxic substances

and hazardous materials.

* * *

(d) All po tentially harmful items

including cleaning supplies, flammable

products, poisonous, toxic, and hazardous

material must be labeled. These items as

well as knives and sharp tools shall be

stored in locations inaccessible to the

children in care.

* * *

(4) Outdoor Play Area.

* * *

(c) The outdoor play area shall be clean,

free of litter, nails, glass and other

hazards.

* * *

(e) The outdoor play area shall have and

maintain safe and adequate fencing or walls

a minimum of four (4) feet in height.

Fencing, including gates, must be continuous

and shall not have gaps that would allow

children to exit the outdoor play area. The

base of the fence must remain at ground

level, free from erosion or build - up, to

prevent inside or outside access by children

or animals.

* * *

(5) Napping and sleeping space. For the

purposes of these standards, sleeping refers

to the normal overnight sleep cycle while

napping refers to a brief period of rest

during daylight or early even ing hours.

* * *

(b) Each child in care must be provided

safe and sanitary bedding to be used when

napping or sleeping. Bedding means a cot,

bed, crib, playpen, mattress (excluding an

air mattress or a foam mattress) or a floor

mat. Floor ma ts must be at least one inch

thick and covered with an impermeable

surface. . . .

(c) Linens, if used, must be laundered at

least once each week and more often if

soiled or dirty.

* * *

(6) Toilet and Bath Facilities.

* * *

(d) Children must receive supervision and

care in accordance with their age and

required needs and be accounted for at all

times while bathing or toileting.

* * *

(f) Running water, toilet paper,

disposable towels or hand drying machines

that ar e properly installed and maintained,

soap and trash receptacles shall be

available and within reach of children using

the toileting facility.

(g) Each basin and toilet must be

maintained in good operating condition and

sanitized as needed, at least onc e per day.

(7) Fire Safety.

* * *

(c) Fire drills shall be conducted

monthly and shall be conducted when children

are in care.

* * *

(8) Health and Sanitation.

* * *

(b) Diapering Requirements.

* * *

2. When children in diapers are in care,

there shall be a diaper changing area with

an impermeable surface which is cleaned with

a sanitizing solution after each use.

* * *

5. Soiled disposable diapers shall be

disposed of in a plastic lined, securely

covered container, which is not accessible

to children. The container shall be emptied

and sanitized at least daily.

6. Soiled cloth diapers shall be emptied

of feces in the toilet and placed in a

securely covered container which is not

acces sible to children. The container shall

be emptied and sanitized daily.

* * *

(9) Equipment and Furnishings.

(a) Indoor Equipment.

* * *

2. Toys, equipment and furnishings must

be safe and maintained in a sanitary

condition.

(b) Outdoor Equipment.

* * *

2. All play equipment shall be securely

anchored, unless portable by design, in good

repair, maintained in safe condition, and

placed to ensure safe usage by the children.

Maintenance shall include checks at least

every other month, of all supports, above

and below ground, all connectors, and moving

parts.

3. Permanent playground equipment must

have a ground cover or other protective

surface under the equipment which provides

resilience and is maintained t o reduce the

incidence of injuries to children in the

event of falls.

4. All equipment, fences, and objects on

the facility's premises shall be free of

sharp, broken and jagged edges and properly

placed to prevent overcrowding or safety

hazards in any one area.

36 . Youth in Action violated Florida Administrative Code

Rule 65C - 22.002 on numerous occasions. On March 10, 2003, and

January 6, 2004, Youth in Action had no documentation to

establish that monthly fire drills had been conducted in

violation of Florida Administrative Code Rule 65C - 22.002(7)(c).

Youth in Action violated Florida Administrative Code Rule 65C -

22.002 by failing to keep areas in good repair as demonstrated

during the inspections on January 6, 2004 ; April 28, 2004 ;

May 7, 2004 ; May 4, 2005 ; November 14, 2005 ; and December 20,

2005. Violations of Florida Administrative Code Rule 65C -

22.002(8) , regarding diapering areas , were established during

the inspections on April 28, 2004 ; May 7, 2004 ; May 13, 2004 ;

August 11, 2004 ; and Novembe r 12, 2004. Violations of Florida

Administrative Code Rule 65C - 22.002(1), regarding the

accessibility of cleaning supplies and knives to children, were

present during the inspections on November 12, 2004 ; January 19,

2005 ; November 14, 2005 ; and November 29, 2005. Youth in Action

violated Florida Administrative Code Rule 65C - 22.002(5) ,

concerning napping and sleeping space , on April 28, 2004 ; May 7,

2004 ; May 13, 2004 ; November 12, 2004 ; and November 14, 2005.

Violations of Florida Administrative Code Ru le 65C - 22.002(6) ,

concerning toilet facilities , were present during the

inspections on April 28, 2004 ; August 11, 2004 ; and May 4, 2005.

The Department established violations of Florida Administrative

Code Rule 65C - 22.002(9) , regarding equipment and furn ishing , on

April 28, 2004 ; May 7, 2004 ; May 13, 2004 ; November 12, 2004 ;

and November 29, 2005.

3 7 . Subsection 402.305(2), Florida Statutes, requires the

Department to establish minimum training requirements for child

care personnel. The training require ments are to include a 40 -

clock - hour introductory course in child care, which child care

personnel must begin within 90 days after employment and

complete such training within one year after the date on which

the training began. The Department promulgated Florida

Administrative Code Rule 65C - 22.003 to address the minimum

training requirements. The Department established that Youth in

Action was in violation of the minimum training requirements on

April 28, 2004 ; May 7, 2004 ; August 11, 2004 ; November 12, 2004 ;

and October 11, 2005.

3 8 . Florida Administrative Code Rule 65C - 22.006(5)

requires child care facilities to maintain current personnel

records on all child care personnel. Youth in Action failed to

maintain current personnel records on April 28, 200 4 ; May 7,

2004 ; November 12, 2004 ; January 19, 2005 ; and March 22, 2005.

3 9 . Florida Administrative Code Rule 65C - 22.003(8)(a)(3)

requires each child care facility to have a director on site a

majority of hours that the facility is in operation. Youth in

Action was in violation of this rule on November 12, 2004, and

April 12, 2006.

40 . Subsection 402.305, Florida Statutes, requires the

Department to establish standards for recordkeeping by child

care facilities. The minimum records shall include

immuniz ations and health examinations. Florida Administrative

Code Rule 65C - 22.006 requires that such records must be

maintained at the facility and be available for review by the

Department during the operating hours of the facility. Youth in

Action was in vio lation of these record keeping requirements on

January 6, 2004 ; November 12, 2004 ; January 19, 2005 ; and

October 11, 2005.

4 1 . Florida Administrative Code Rule 65C - 20.002(5)(d)

requires child care facilities to maintain personnel records on

child care per sonnel , which include background screenings from

local law enforcement agencies and the Florida Department of Law

Enforcement. Youth in Action violated this rule on February 20,

2004 ; January 19, 2005 ; and March 22, 2005.

4 2 . Subsection 402.305(7)(a), Fl orida Statutes, requires

the Department to establish minimum standards for the following:

[S] anitary and safety conditions, first aid

treatment, emergency procedures, and

pediatric cardiopulmonary resuscitation.

The minimum standards shall require that at

least one staff person trained in

cardiopulmonary resuscitation, as evidenced

by current documentation of course

completion, must be present at all times

that children are present.

4 3 . The Department promulgated Florida Administrative Code

Rule 65C - 22.0 04 to address the standards for first aid and

cardiopulmonary resuscitation. The rule provides:

(2) First Aid, Cardiopulmonary

Resuscitation and Emergency Procedures.

(a) Each child care facility must have at

least one staff member with a valid

cer tificate of course completion for first

aid training and infant and child

cardiopulmonary resuscitation procedures.

One staff member satisfying these training

requirements shall be present at all times

that children are in the care of the

facility, both o n - site and on field trips.

* * *

(c) At least one first aid kit containing

materials to administer first aid must be

maintained on the premises of all child care

facilities at all times. . . . Each kit must

at a minimum include:

1. Soap,

2. Band - aids or equivalent,

3. Disposable latex gloves,

4. Cotton balls or applicators,

5. Sterile gauze pads and rolls,

6. Adhesive tape,

7. Thermometer,

8. Tweezers,

9. Pre - moistened wipes,

10. Scissors, and

11. A current resource guide on first

aid and CPR procedures.

4 4 . Youth in Action was in violation of Florida

Administrative Code Rule 65C - 22.004(2) on February 5, 2003 ;

August 11, 2004 ; and November 12, 2004.

4 5 . Florida Administrative Code Rule 65C - 22.004 (2)(d)3 .

requires that "all accidents and incidents which occur at a

facility must be documented and shared with the custodial parent

or legal guardian on the day they occur." Youth in Action

violated this rule on February 5, 2003, by failing to document

that a child scratched his nose while going down a slide.

4 6 . Florida Administrative Code Rule 65C - 22.001(7)(a)

requires that "[e]ach age group or class must have a written and

followed plan of scheduled activities posted in a place

accessible to parents. " Youth in Action failed to meet this

requirement during the inspection on August 11, 2004.

4 7 . Florida Administrative Code Rule 65C - 22.004(3)

requires that a child care facility must have written

authorization from a parent or legal guardian prior to

di spensing medication to a child. Youth in Action violated this

ruled during the inspection on November 12, 2004.

4 8 . Subsection 402.302(3), Florida Statutes (2005),

provides that a volunteer who assists at a child care facility

on an intermittent basis f or less than 40 hours per month is not

included in the definition of child care personnel for the

purposes of training and screening as long as the volunteer is

under the direct and constant supervision of persons who meet

the personnel requirements of Sub section 402.305(2), Florida

Statutes (2005). On April 13, 2006, Youth in Action violated

Subsection 402.305(3), Florida Statutes (2005), by utilizing a

volunteer to care for children, when the volunteer was not under

the direct and constant supervision of child care personnel

meeting the necessary training and screening requirements.

4 9 . Florida Administrative Code Rule 65C - 22.006(6)(c)

requires a child care facility to have an emergency evacuation

plan posted in each room of the facility. Youth in Actio n

failed to meet this requirement during the inspection on

April 13, 2006.

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

that the Department may "deny, suspend, or revoke a license or

impose an administrative fine . . . for the violation of a ny

provision of ss. 402.301 - 402.319 or rules adopted thereunder."

Subsection 402.310(1)(b), Florida Statutes, provides:

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following facto rs 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 actual or potential harm, and

the extent to which the pro visions of ss.

402.301 - 402.319 have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee.

5 1 . Youth in Action is guilty of violating numerous rules

and statut es governing child care facilities from 2003 through

2006. Many of the violations are serious in nature such as the

staff - to - children ratios, the failure to have background

screening on child care personnel, the failure to have staff who

are trained in fi rst aid and cardiopulmonary resuscitation

present at the facility when children are in the facility.

These violations have the probability of resulting in serious

harm to the health and safety of the children in the facility.

The failure to keep adequate staff to supervise the children is

very troubling, especially in light of a 19 - month - old child

wandering away from the facility on November 9, 2004, due to a

lack of supervision. Although Youth in Action had been cited

many times for inadequate staff - to - children ratios, the facility

continued as late as April 13, 2006, to have inadequate

supervision for the children in its care.

5 2 . In 2004 and in 2005, Youth in Action 's license was

placed on provisional status. The provisional license effective

from Ja nuary 10, 2005, through June 1, 2005, resulted from

repeated violations of the Florida Statutes and Florida

Administrative Code. On December 2, 2004, Youth in Action was

issued an Administrative Complaint and fined $500 for inadequate

supervision.

5 3 . Ba sed on the severity of the violations and the

previous actions taken against Youth in Action's license, the

appropriate disciplinary action is revocation of its license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is R ECOMMENDED that a f inal o rder be entered finding

that Youth in Action violated Section 402.305, Florida Statutes,

and Florida Administrative Code Rules 65C - 20.001, 65C - 20.002,

65C - 20.003, 65C - 20.004, and 65C - 20.006 , and revoking it license

to operate a chi ld care facility.

DONE AND ENTERED this 2 9 th day of January , 2007 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 2 9 th day o f January , 2007 .

ENDNOTE

1/ All references to the F lorida Statutes are to the version in

effect from 2002 through 2005, unless otherwise indicated.

COPIES FURNISHED :

Walter A. Otto, Esquire

Department of Children and Families

2639 North Monroe Street

Building A, Suite 140

Tallahassee, Florida 32399

Ce cile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Gregory Venz, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copelan, G eneral Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert Butterworth, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Winewood Bouleva rd

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 a gency that

will issue the Final Order in this case.