06-002961 Tara Grizzell, D/B/A Koala Kuties vs. Department Of Children And Family Services Status: Closed Recommended Order on Monday, December 4, 2006.

Summary: As a result of numerous and repetitive rule violations, Petitioner is not entitled to a renewal of its day care center license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TARA GRIZZELL, )

d/b/a/ KOALA KUTIES, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2961

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

on October 30, 2006, in Brooksville, Florida, before the

Division of Administrative Hearings, by its designa ted

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Michael H. Hopkins, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

For Respon dent: Tara Grizzell, pro se

Koala Kuties

13804 Linden Drive

Spring Hill, Florida 34609

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Department of

Children and Family Services should renew the daycare license of

Petition er.

PRELIMINARY STATEMENT

On July 3, 2006, the Department of Children and Family

Services (Department) issued a notice of denial to Petitioner,

Tara Grizzell, d/b/a Koala Kuties. The notice of denial

(notice) alleged that Petitioner failed to comply wi th Sections

402.301 - 402.319, Florida Statutes. Specifically, the notice

alleged that Petitioner was cited on numerous occasions from

October 2003 through May 2006, for non - compliance with several

Florida Administrative Code Rules regarding lack of screeni ng

and other personnel documentation on employees, failure to

maintain children's health and immunization records, failure to

maintain the facility in clean and good repair, and failure to

hold monthly fire drills. The notice informed Petitioner that

her application to renew her license to operate the daycare

center was denied.

Petitioner disputed the allegations of the notice and

requested an administrative hearing. The Department forwarded

the request for a hearing to the Division of Administrative

Hea rings on or about August 17, 2006. A formal hearing was

scheduled for October 30, 2006.

At hearing, Petitioner testified on her own behalf.

Petitioner's Exhibits numbered 1 and 2 were admitted into

evidence. Respondent presented the testimony of Glen da McDonald

and Diana McKenzie. Respondent's Exhibits numbered 1 and 2 were

admitted into evidence.

The hearing was not transcribed. The Department timely

filed a Proposed Recommended Order, which has been considered in

the preparation of this Recomme nded Order. Petitioner did not

file a written post - hearing submission.

All references to statutes are to Florida Statutes (2006)

unless otherwise noted.

FINDINGS OF FACT

1. Tara Grizzell owned and operated Koala Kuties (the

Center) which was located in Brooksville, Florida. At the time

of the n otice of d enial, Petitioner's annual license was

scheduled to expire on July 9, 2006.

2. Glenda McDonald is a daycare licensing agent with the

Department. She conducted an inspection of the Center on

October 30, 2003.

3. During the course of the inspection, Ms. McDonald

completed a 63 - item checklist of the facility. On this

checklist, Ms. McDonald noted that the Center was not in

compliance with applicable statutes and rules in some areas.

The areas of non - compliance noted were that the Center was not

in compliance in posting a log of monthly fire drills,

medication was not locked or properly stored, and the required

record keeping for the children's health and immunization

records was disorganized.

4 . The checklist shows a required compliance date of the

close of business on the date of inspection for the violations

regarding records of fire drills and improperly stored

medications. Regarding record keeping of health and

immunization records, Ms. Mc Donald noted that there would be a

re - check in four months.

5. Approximately four months later, Ms. McDonald conducted

another inspection of the Center on February 23, 2004. Again,

Ms. McDonald noted on the inspection checklist that the Center

was not in compliance with the requirements regarding record

keeping of the children's health and immunization records. In

addition, Ms. McDonald found that the Center was not in

compliance regarding proper storage of toxic and hazardous

materials because bleach, c leaner, and fingernail polish were

accessible to children; the Center had failed to complete a

required form regarding mandatory training for its employees;

and required personnel and screening documents for the Center's

employees were not complete.

6. Ms . McDonald next inspected the Center on June 7, 2004.

During that inspection, she again found that the monthly fire

drill log had not been posted and employees' screening documents

were still not completed.

7. Ms. McDonald returned to the Center on Octob er 28,

2004, to conduct another inspection. Ms. McDonald found the

Center very disorganized with toys, dishes, and other items in

places where peo ple could trip over them. She noted on her

inspection checklist that the Center was in violation for

failure to keep the Center in clean and good repair.

8. Additionally, Ms. McDonald again found the facility to

be in non - compliance in the area of record keeping for the

children's health and immunization records, personnel records,

and personnel screening recor ds. She also found the Center to

be out of compliance regarding crib requirements because an

infant was asleep on its tummy, and found the Center to be out

of compliance for failure to maintain safe and adequate fencing

because the playground fence was un locked.

9. On November 18, 2004, Ms. McDonald conducted a

reinspection of the facility to determine whether Ms. Grizzell

brought the facility into compliance. She again found it to be

in non - compliance for failure to maintain the children's health

and im munization records and failure to maintain the required

employee screening documents.

10. Ms. McDonald next made an inspection of the Center on

February 7, 2005. She again found the Center to be in non -

compliance in the areas of failure to post fire dril l logs,

failure to maintain required personnel documents, and the

Center 's lack of required documentation on two of the children.

Additionally, Ms. McDonald found the Center to be cluttered and

out of compliance with the requirement that the facility be

c lean and in good repair, and that substitutions to the planned

menu were not recorded on the posted menu as required.

11. Ms. McDonald made a reinspection of the facility on

April 21, 2005, during which she again found the Center to be in

non - compliance in the areas of the children's health and

immunization records and required personnel and background

screening records.

12. On June 2, 2005, Ms. McDonald made another inspection

of the Center and found everything to be in compliance except

the children's immunization records, as they needed to be

updated to reflect current immunizations.

13. On October 6, 2005, Ms. McDonald made another

inspection of the Center and again found it to be in non -

compliance for failure to update the children's immunization and

medical records, and failure to have complete personnel and

background screening records on file.

14. On January 24, 2006, Ms. McDonald inspected the Center

and again found it to be in non - compliance, in that there was no

report posted to show that a fire drill had been conducted in

December 2005; there was evidence of smoking near the entrance

of the facility and in the outdoor play area, and, therefore,

not in compliance with requirements that all areas be free of

toxic substances and hazardous mate rials; the immunization

records of two of the children were not up - to - date; and the

facility still did not have a complete record on file for all of

the child care personnel nor required background screening

documents. Additionally, Ms. McDonald found the Center to be in

non - compliance for not posting their plan of scheduled

activities as required and failing to store medicine properly.

15. On May 25, 2006, Ms. McDonald again made an inspection

of the facility and found it to be in non - compliance for

inco mplete files documenting required training of personnel ,

failure to have sufficient credentialed staff on the premises,

failure to post a menu, and failure to maintain employee records

and employee background screening requirements.

16. Petitioner previou sly paid a civil penalty in the

amount of $500 when a child wandered away from the Center and

was found walking down a busy road in 2005. 1/

17. Ms. Grizzell acknowledged at hearing that she had

trouble with record keeping because there was a lot of turno ver

of employees. Further, she noted that on the January 24, 2006 ,

inspection checklist, she was later found to be in compliance

regarding the alleged violation of toxic and hazardous materials

being present. Regarding the child who wandered away,

Ms. Gr izzell noted that the incident happened on the second day

of care for the child.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat.

19. The Department of Children and Family Services is the

agency charged with the responsibility of licensing child care

facilities in the state of Florida. Chapter 402, Fla. Stat.

20. In response to the application to renew her license,

the Department noti fied Petitioner that the license would not be

renewed. The basis for the denial to renew the license was that

Petitioner failed to comply with Sections 402.301 - 402.319, et

seq. , Florida Statutes. Specifically, the notice of denial

alleges in pertinent pa rt as follows:

Your facility has demonstrated a history of

noncompliance. This denial action is being

taken for the following reasons:

Screening Documents 65C - 22.006(5)(a - c)(e)(f)

& 402.302(3): Since October 2003 some

employees were not properly screen ed in that

records lacked one or more of the following

required screening documents: FBI, FDLE,

Local law records check or other screening

documents. Also employee fingerprints were

not submitted within 10 working days of

being hired.

Children's Health/ Immunization Records 65C -

22.006(2)(A - C): Since October 2003 several

children's immunization and physical records

had expired or were missing.

Clean/Good Repair 65C - 22.002(1)(c) Since

October 2003 the facility has been cluttered

and disorganized jeopardi zing the health and

safety of children.

Monthly Fire Drill 65C - 22.002(7)(c): On 10 -

30 - 03, 6 - 7 - 04, 2 - 7 - 05, 4 - 21 - 05 and 1 - 24 - 06

fire drills were not completed for that

month.

Direct Supervision 65C - 22.001(5)(a)(b)(d)1,2

& 3: On 4 - 5 - 05 a 4 year old child walked

away from your center unnoticed. An unknown

female found the child and called the

sheriff.

No Toxic/Hazardous Materials 65C -

22.002(1)(b)(c)(e)(g): On 1 - 24 - 06 the

facility was cited for employees smoking on

the premises.

21. Section 40 2.310, Florida Statutes, authorizes the

Department to take adverse action regarding the license of the

child care facility, and reads in pertinent part as follows:

Disciplinary actions; hearings upon denial,

suspension, or revocation of license;

administra tive fines. --

(1)(a) The department or 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 thereunder .

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 action 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 re sulted, 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 violations of the licensee.

(emphasis supplied)

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

requires direct supervision of each child in child care

facilities and places the responsibility on child care personnel

to ap propriately supervise the children in their care.

23. Regarding record keeping, Florida Administrative Code

Rule 65C - 22.006(5) requires the operator of a child care

facility to maintain certain employment and screening

information regarding its employees. Subsection (6) requires

documentation demonstrating that each child has received

required immunizations and health examinations.

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

requires that all child care facilities be in good repair and

free from h ealth and safety hazards and that all potentially

hazardous items be stored in locations inaccessible to children.

25. Florida Administrative Code Rule 65C - 22.002(7)

requires child care facilities to conduct monthly fire drills

while children are there.

2 6. In this case, Petitioner was advised on 11 occasions

from October 2003 through May 2006 of various violations in her

child care facility. Many violations were repeated on numerous

occasions.

27. Based upon the numerous, repetitive violations and

Peti tioner's failure to correct many of these violations,

Petitioner is not entitled to a renewal of the child care center

license.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Department of Children and Family Services enter a

final order denying Petitioner's application for relicensure.

DONE AND ENTERED this 4th day of December, 2006, in

Tallahassee, Leon County, Florida.

S

_______________________________ ____

BARBARA J. STAROS

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 4th day of December , 2006

ENDNOTE

1/ Additionally, an Administrative Complaint seeking to impose

a civil penalty in the amount of $700, is in evidence. The

Administrative Complaint appears to attempt to impose this

penalty based upon the same records violations during 2004 - 2006

(incompl ete immunization and health records for the children and

incomplete personnel records for the employees) cited in the

instant case by Ms. McDonald. The date of and disposition of

this Administrative Complaint is unclear in the record.

COPIES FURNISHED:

Michael H. Hopkins, Esquire

Department of Children

and Family Services

1601 West Gulf Atlantic Highway

Wildwood, Florida 34785 - 8158

Tara Grizzell

13804 Linden Drive

Spring Hill, Florida 34609

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John Copelan, General Counsel

Department of Children

and Family Services

Build ing 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 Winewood Boulevard

Tallahassee, Flor ida 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 Recom mended Order should be filed with the agency that

will issue the Final Order in this case.