06-002462 George And Alicia Barrett, D/B/A Child Care 2000, Inc. vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, September 13, 2006.

Summary: Respondent shall renew Petitioners` application for renewal of a child care licence. Petitioners are not guilty of a Class I violation based on inadequate supervision, and their history of noncompliance is insufficient to warrant denying the application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE AND ALICIA BARRETT, )

d/b/a CHILD CARE 2000, INC. , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 2462

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on August 23,

2006, in Tavares, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Stella Varona Balandran

Qualified Representative

95 South Trowell Avenue

Umatilla, Florida 32784

For Respondent: Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

STATEMENT OF THE ISSUE

The issue is whether Respondent should renew Petitioner's

license to operate a child care facility based on an alleged

Class I violation of Florida Administrative Code Rule 65C -

22.001(5)(a) and an alleged history of noncompliance with the

Florida Administrative Code rules regulating child care

facilities.

PRELIMINARY STATEMENT

In a let ter dated May 22, 2006, Respondent Department of

Children and Family Services (Respondent) informed Petitioners

George and Alicia Barrett d/b/a Child Care 2000, Inc.

(Petitioners) that their application to renew their license to

operate a child care facili ty, located at 24534 State Road 44,

Sorento, Florida, was denied. The letter stated that the denial

was based on a recent Class I violation of Florida

Administrative Code Rule 65C - 22.001(5)(a) and a history of

repeated noncompliance with other Florida Adm inistrative Code

rules.

On June 23, 2006, Petitioners filed a request for an

administrative hearing. On July 14, 2006, Respondent referred

Petitioners' request to the Division of Administrative Hearings.

On August 1, 2006, the undersigned issued a Notice of

Hearing, scheduling the hearing for August 23, 2006.

On August 10, 2006, Petitioners filed a request for Stella

Varona Balandran to act as their qualified representative. On

August 16, 2006, the undersigned issued an Order Accepting

Qualified Representative.

On August 10, 2006, Petitioners filed an untitled pleading

containing facts and legal argument. However, neither party

offered the pleading as evidence during the hearing and it has

not been considered as such.

During the hearing, Pet itioners testified on their own

behalf and presented the testimony of five witnesses.

Petitioners offered 12 exhibits that were admitted as evidence.

Respondent presented the testimony of two witnesses.

Respondent offered four exhibits that were accepte d as evidence.

At the close of the proceeding, Petitioners indicated that

they intended to file a copy of the hearing transcript. The

next day, the undersigned's office was informed that a copy of

the transcript would not be filed with the Division of

Ad ministrative Hearings. On August 28, 2006, the undersigned

issued an Order to inform the parties that they had an

opportunity to file proposed recommended orders on September 5,

2006.

On August 31, 2006, Petitioners filed Proposed Findings of

Fact and Conclusions of Law. As of the time that this

Recommended Order was issued, Respondent had not filed a

proposed order.

FINDINGS OF FACT

1. At all times material here, Petitioners owned and

operated Child Care 2000, #1 (the facility), located on State

Roa d 44, Sorrento, Florida. Petitioner George Barrett was the

licensed child care director of the facility, which had been a

child care center for 14 years.

2. The facility had an employee's manual that addresses

its policies. The manual contained polic ies regarding regular

staff meetings, parent/teacher conferences, and mandatory

initial/in - service training requirements. The manual also

included a section on safety, which stated as follows:

Do not leave your classroom unsupervised at

anytime, indoors or out. All electrical

outlets must be covered at all times. Any

broken or damaged equipment must be removed

or brought to the Director's attention.

Remember to count your children every hour.

All of these things must be done daily. DO

NOT leave chil dren unattended. There will

be tolerance for this action.

3. The facility had a time clock, which the employees used

to record their time at work. The information from the time

clock transferred electronically to the facility's computer,

which capture d the information for use in a software program

that generated payroll. If a teacher's time card was incorrect

for any reason, the bookkeeper could manually override the

system to correct any error.

4. The facility also used the time clock to log the t ime

that children attended the facility. The attendance records

transferred electronically to the facility's computer, which

captured the data for use in a software program that generated

billing statements.

5. The children's parents used a password to activate the

time clock when they dropped off or picked up their children.

There is no evidence that anyone at the facility knew how to

manually override the children's electronic attendance log.

6. Respondent alleges that its inspector, Glenda McDona ld,

performed an inspection of the facility on October 27, 2005.

The inspection checklist contains allegations that the facility

was noncompliant in the following areas: (a) Outdoor Play Area,

Florida Administrative Code Rule 65C - 22.002(4)(c)(g); (b)

Fen cing, Florida Administrative Code Rule 65C - 22.002(4)(d)(e);

(c) Outdoor Equipment/Suitable, Safe, Maintained, Florida

Administrative Code Rule 65C - 22.002(9)(b); (d) 10 - hour In -

service, Florida Administrative Code Rule 65C - 22.003(6)(a) - (c);

(e) Bottles Sani tary and Labeled, Florida Administrative Code

Rule 65C - 22.005(3)(b)(c); (f) Children's Health/Immunization

Records, Florida Administrative Code Rule 65C - 22.006(2)(a) - (c);

(g) Personnel Records, Florida Administrative Code Rule 65C -

22.006(5)(a) - (c), (e), (f ), (6)(e); and (h) Form 5131/Screening

Documents, Florida Administrative Code Rule 65C - 22.006(5)(d).

7. Respondent did not present Ms. McDonald as a witness at

the hearing. Without Ms. McDonald's testimony or an admission

by Petitioners, there is no co mpetent evidence by Respondent to

show the facility's noncompliance on October 27, 2005.

8. During the hearing, Petitioners did admit that the

facility failed to comply with the rules on October 27, 2005, in

the following respects: (a) the need to remo ve or replace a

broken swing as required by Florida Administrative Code Rule

65C - 22.002(9)(b); and (b) the need to update children's shot

records and physicals as required by Florida Administrative Code

Rule 65C - 22.006(2)(a) - (c).

9. Petitioners presente d testimony that the broken swing

was repaired immediately after the October 27, 2005, inspection.

Additionally, Petitioners admitted that they found it impossible

to keep the children's shot records and physicals updated, but

that they corrected the prob lem in a timely manner after the

October 27, 2005, inspection.

10. On January 30, 2006, one of Respondent's inspectors,

Debbi Mitchell, performed an inspection of the facility.

Ms. Mitchell observed that the facility was noncompliant in the

following w ays: (a) failure to update children's shot records

as required by Administrative Code Rule 65C - 22.006(2)(a) - (c);

and (b) failure to update personnel screening documents as

required by Florida Administrative Code Rule 65C - 22.006(5)(d)

and Section 435.04, F lorida Statutes. There is no evidence to

dispute Ms. Mitchell's testimony regarding the January 30, 2006,

inspection. The failure to keep the children's shot records

updated was a repeated offense.

11. On or about March 31, 2006, Petitioner filed an

a pplication with Respondent to renew their license.

12. Petitioners' daughter - in - law was the facility's office

manager. When Petitioners were unable to be present at the

facility, the daughter - in - law was the person in charge of the

child care center.

13. If the Petitioners were absent and the daughter - in - law

had to leave the premises, Linda Race, a senior pre - kindergarten

teacher was in charge of the facility. Ms. Race would take over

as the person in charge when Petitioner's daughter - in - law handed

h er the facility's telephone.

14. A.B. was the son of the daughter - in - law/office manager

and the grandson of Petitioners. In the spring of 2006, A.B.

was two - years - old. He attended one of the pre - kindergarten

classes at the facility.

15. It was not unusual for A.B. to see his mother during

the school day. Sometimes A.B. would become upset and cry if he

was not allowed to leave his class and go to his mother in the

office.

16. On April 25, 2006, Petitioners were not at the

facility. Petitioner Al icia Barrett was taking care of

Petitioner George Barrett, who was recovering from a serious

illness.

17. On April 25, 2006, Petitioner's daughter - in - law

clocked into work at the facility at 8:10 a.m. A.B. arrived

with his mother then joined his class. Later that morning, A.B.

began crying for his mother. Ms. Race attempted to refocus

A.B.'s attention before letting him go to his mother. From that

time on, Ms. Race believed that A.B. was no longer participating

in her class because he was with his mo ther. Ms. Race

understood that A.B.'s mother was planning to leave the facility

in the early part of the morning.

18. On April 25, 2006, Petitioner's daughter - in - law

clocked out of the facility at 9:59 a.m. She had been at the

facility for one hour an d 49 minutes before she clocked out.

A.B.'s electronic attendance log for that day indicates that he

was in attendance for one hour and 49 minutes. A.B.'s mother

did not testify at the hearing.

19. Sometime after 10:00 a.m. on April 25, 2006, Ms. Race

a nd her assistant, another teacher identified as Brittany

Russell, were with the children on the facility's porch. As the

children prepared to move from the porch to their classroom,

Ms. Race and Ms. Russell, began taking a head count. About that

time, A. B.'s mother approached Ms. Race and handed the

facility's telephone to her. Accepting the telephone with a

call on the line, Ms. Race realized that A.B. was not with his

mother and that he was at the Circle K, a convenience store and

gas station located n ext to the facility. Apparently, employees

of the Circle K had called the facility to see if a child was

missing. Ms. Race immediately ran from the facility to the

Circle K to retrieve A.B.

20. The totality of the circumstances indicates that A.B.

was with his mother when he left the facility. The facility's

teachers had no reason to believe otherwise.

21. No one at the facility prepared an incident report

relative to the events that occurred on April 25, 2006.

However, under the circumstances of this case, it is clear that

A.B.'s mother was aware of the emergency that was created when

A.B. left his mother and went to the Circle K.

22. On May 12, 2006, Ms. Mitchell investigated a complaint

against the facility involving the events of April 25, 2 006.

The investigation of the complaint resulted in Respondent's

issuance of an Intent to Impose Administrative Action for the

following alleged violations: (a) inadequate supervision as

required by Florida Administrative Code Rule 65C - 22.001(5)(a),

(b), (d)1. - 3.; and (b) failure to document the incident

involving A.B. as required by Florida Administrative Code Rule

65C - 22.004(2)(d)2.

23. There is no clear and convincing evidence to support

these allegations. The facility did not provide inadequate

s upervision for A.B. because he was with his mother and not

under the supervision of the facility when he went to the Circle

K. Accordingly, there was no need for the facility to document

the incident.

24. On May 12, 2006, Ms. Mitchell also performed an

inspection of the facility. During the inspection, Ms. Mitchell

observed the following alleged noncompliance: (a) Planned

Activities Posted and Followed as required by Florida

Administrative Code Rule 65C - 22.001(7)(a); (b) Outdoor

Equipment/Suitable, Sa fe, Maintained as required by Florida

Administrative Code Rule 65C - 22.002(9)(b); (c) First Aid

Staff/Supplies as required by Florida Administrative Code Rule

65C - 22.004(2)(a) - (c); (d) Accident/Incident Documented as

required by Florida Administrative Code Rule 65C - 22.004(2)(d)2. -

4.; and (e) Children's Health/Immunization Records as required

by Florida Administrative Code Rule 65C - 22.006(2)(a) - (c).

25. On May 12, 2006, the plan of classroom

activities/schedule for each age group was posted in entrance to

th e facility near the office. That area was an appropriate

place for all parents entering or leaving the facility to access

the plan.

26. On May 12, 2006, the facility's playhouse, which was

located on its playground, had broken boards. After

Ms. Mitche ll's inspection, Petitioner immediately repaired the

broken boards. The failure to keep the playground equipment

properly maintained was a repeated violation.

27. On May 12, 2006, Ms. Mitchell inspected the facility's

fist aid kit, finding it extremely i ncomplete. Petitioners

immediately corrected this noncompliance.

28. On May 12, 2006, Ms. Mitchell determined that

Petitioner did not prepared an incident report relative to A.B.

leaving the facility on April 25, 2006. However, such

documentation was no t required because A.B. was with his mother,

who had clocked him out of the facility.

29. On May 12, 2006, Ms. Mitchell found that the facility

had outdated shot records and/or physicals for four students.

This was the third consecutive instance of thi s type of

noncompliance. After the inspection, Petitioner corrected the

problem in a timely manner.

30. At the time of the hearing, the facility was closed.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the par ties and the subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 402.310, Fla . Stat .

(2005).

32. Respondent has the burden of presenting clear and

convincing evidence that Petitioner's application to renew their

license to operate the fac ility should be denied. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 933 (Fla. 1996).

33. Section 402.310, Florida Statutes (2005), states as

follows in pertinent pa rt:

(1)(a) The department of local

licensing agency may deny, suspend, or

revoke a license or impose an administrative

fine not to exceed $100 per violation, per

day, for the violation of any provision of

ss. 402.301 - 402.319 or rules adopted

thereu nder. However, where the violation

could or does cause death or serious harm,

the department or local licensing agency may

impose an administrative fine, not to exceed

$500 per violation per day.

(b) In determining the appropriate

disciplinary act ion to be taken for a

violation as 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 actual or potential harm,

and the extent to which the provisions 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 vi olations of the

licensee.

Class I Violation

34. Florida Administrative Code Rule 65C - 22.001(5) states

as follows in relevant part:

(5) Supervision

(a) Direct supervision means watching

and directing children's activities within

the same r oom or designated outdoor play

area and responding to each child's needs.

Child care personnel at a facility must be

assigned to provide direct supervision to a

specific group of children and be present

with that group of children at all times. .

. .

35 . In this case, the evidence is not clear and convincing

that A.B. was still under the care and control of the facility

when he went to the Circle K. Ms. Race believed that she had

relinquished supervision of A.B. to his mother. A.B. was logged

out of t he facility before Ms. Race learned that A.B. was at the

Circle K. The evidence is not clear and convincing that

Petitioners are guilty of a Class I violation on April 25, 2006.

History of Noncompliance

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

states as follows:

(7) Planned Activities.

(a) Each age group or class must have

a written and followed plan of scheduled

activities posted in a place accessible to

the parents. The written plan must meet the

needs of the children being s erved . . . .

37. The most persuasive evidence indicates that

Petitioners posted the class schedules for all classes in the

entrance to the facility, an area that was most accessible to

parents as they dropped off or picked up their children. The

eviden ce is not clear and convincing that Petitioners violated

this requirement.

38. Florida Administrative Code Rule 65C - 22.002(9)(b)

states as follows in pertinent part:

1. A child care facility shall provide

an [ sic ] maintain equipments and play

ac tivities suitable to each child's age and

development.

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 in clude

checks at least every other month, of all

supports, above and below the ground, all

connectors and moving parts.

* * *

4. All equipment, fences, and objects

on the facility's premises shall be free of

sharp, broken and jagged edges and prop erly

placed to prevent overcrowding or safety

hazards in any one (1) area.

39. Petitioners admitted that they repaired/replaced a

broken swing after the October 27, 2005, inspection and repaired

the broken boards on the playhouse after the May 12, 2006 ,

inspection. Clear and convincing evidence indicates that

Petitioner's failed to properly maintain their outdoor play

equipment on two occasions.

40. Florida Administrative Code Rule 65C - 22.004(2)

provides as follows in pertinent part:

(c) At least one (1) first aid fit

containing material to administer first aid

must be maintained on the premises of all

child care facilities at all times. A first

aid kit must also accompany child care staff

when children are participating on field

trips. Eac h kit shall be accessible to the

child care staff at all times and kept out

of the reach of children. Each kit must at

a minimum include:

1. Soap,

2. Band - aids or equivalent,

3. Disposable latex gloves,

4. Cotton balls or applicato rs,

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.

41. These is clear and c onvincing evidence that

Petitioners violated the requirement to maintain first aid

supplies on May 12, 2006. Their first aid kit was extremely

incomplete.

42. Florida Administrative Code Rule 65C - 22.004(2)(d)

states as follows in relevant part:

(d ) Emergency Procedures and

Notification.

* * *

2. Custodial parents or legal

guardians shall be notified immediately in

the event of any serious illness, accident,

injury or emergency to their child and their

specific instruction regarding action to be

taken under such circumstance shall be

obtain and followed. . . .

3. 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.

4. After a fire or natural disaster,

the operator must notify the licensing

agency within twenty - four (24) hours, in

order for the licensing authority to ensure

health standards are being met for continued

operation.

43. There was no need for Petitioner to document t he

incident where A.B. went to the Circle K on April 25, 2006. The

evidence is not clear and convincing that the facility was

responsible for A.B. when he left the facility. A.B.'s mother,

as a parent, was aware of the emergency that morning. The

incide nt did not involve a fire or natural disaster.

44. Florida Administrative Code Rule 65C - 22.006(2)(a) - (c)

states as follows in relevant part:

(a) The child care facility is

responsible for obtaining a current and

completed DH Form 3040, June 2002 , Student

Health Examination for each child in care,

within thirty (30) days of enrollment and

maintaining a current copy of file while the

child is enrolled at the facility. . . .

(b) The Student Health Examination is

valid for two (2) years for th e date the

physical was performed.

(c) The child care facility if [ sic ]

responsible for obtaining a current and

completed DH Form 680, Florida Certification

of Immunization Part A - 1, B, or C (July

2001), or DH Form 681, Religious Exemption

from Immun ization (May 1999), for each child

in care, within thirty (30) days of

enrollment, and maintaining a current copy

on file while the child is enrolled at the

facility.

45. Petitioners admitted that they found it almost

impossible to keep the children's s hot records and physical

examination updated. Clear and convincing evidence indicated

that Petitioners violated this requirement on October 27, 2005,

January 30, 2006, and May 12, 2006.

46. Florida Administrative Code Rule 65C - 22.006(5) states

as follows in pertinent part:

(5) Personnel Records. Records shall

be maintained and kept current on all child

care personnel, as defined by Section

402.302(3), F.S. . . . These shall include:

* * *

(d) Level 2 screening information

documented on C F - FSP Form 5131, Feb. 04,

Background Screening and Personnel File

Requirements.

47. On January 30, 2006, Petitioner did not have the

proper screening documents for one employee. Clear and

convincing evidence indicates that Petitioner's violated this

r equirement.

48. Petitioners are guilty of three Class II violations

and four Class III violations. They corrected all instances of

noncompliance in a timely manner. Additionally, there is no

evidence that any child was harmed as a result of Petitioners'

failure to comply. This history of noncompliance must be

considered in light of the 14 years that Petitioner's operated

the facility.

RECOMMENDATION

Based on the forgoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That Respondent enter a final order granting Petitioners'

application to renew their license to operate the facility ,

subject to terms and conditions that Respondent deems

appropriate.

DONE AND ENTERED this 1 3 th day of September , 2006 , in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 1 3 th day of September , 2006 .

COPIES FURNISHED :

Ralph J. McMurphy, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785

Stella V. Balandran

Qualified Representative

95 South Trowell Avenue

Umatilla, Florida 32784

Gregory D. Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 070 0

John Copelan, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Luci D. Hadi, Secretary

Department of Children and

Family Services

Building 1, Room 202

1317 Win ewood 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 fil ed with the agency that

will issue the final order in this case.