10-003594 Department Of Children And Family Services vs. 3 In 1 Childcare Learning Center And Charles Smith Status: Closed Recommended Order on Monday, November 15, 2010.

Summary: Respondents violated the rules regarding transporting children and the capacity rules in a licensed child care facility and should receive a fine and placed on probationary status.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES , )

)

Petitioner , )

)

vs. ) Cas e No. 10 - 3594

)

3 IN 1 CHILDCARE LEARNING )

CENTER AND CHARLES SMITH , )

)

Respondents . )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 27, 2010, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Charl es Smith, pro se

3 in 1 Childcare and Learning Center

4025 Emerson Street

Jacksonville, Florida 32207

For Respondent: Roger L. D. Williams, Esquire

Department of Children

and Family Services

5920 Arlington Expressway

Jacksonville, Florida 32231

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Florida Statutes

and Rules concerning the delivery of childcare serv ices and

should receive fines and other penalties in accordance with

Florida law. For the reasons set forth more fully below,

Petitioner violated certain provisions of the Florida Statutes

and Florida Administrative Code and should be subjected to fines

a nd probation.

PRELIMINARY STATEMENT

By letter dated May 16, 2010, Petitioner, Department of

Children and Famil y Services (Department) informed Respondent s,

that it was imposing a fine of $4,960 on Respondent Smith ' s

licensed child care facility, and placi ng the center ' s license

on probationary status. Respondents timely requested a hearing

before the Division of Administrative Hearings, which was held

in Jacksonville, Florida, on August 27, 2010.

At the hearing, Petitioner presented the testimony of Meike

Rice, Latrice Evans, and Lisa Perkins as witnesses and offered

15 exhibits , which were admitted into evidence. Respondent

3 in 1 Childcare Learning Center presented the testimony of

Norma Wallace, its director, and Charles Smith, its owner, as

witnesses and offered 13 exhibits , which were admitted into

evidence.

A Transcript was filed on September 13, 2010 . After the

hearing, Petitioner filed proposed findings of fact and

conclusions of law on September 22, 2010 . Respondents did not

file p roposed f in dings of f act and c onclusions of l aw, but filed

a letter on September 21, 2010, in which it requested a

reduction or elimination of any fines sought to be imposed

against Lisa Perkins, and requesting that the child care center

not be placed on probation.

References to statutes are to Florida Statutes (2009)

unless otherwise noted.

FINDINGS OF FACT

1 . Respondent 3 in 1 Learning Center (the Center) is a

child care facility licensed by the Department.

2. A licensed child care facility has the responsibi lity

for providing care to those children who have been placed in its

care.

3. F amilies in Duval County rely upon the Department to

monitor child care facilities and ensure compliance with the

Florida Statutes and Department's a dministrative r ules.

4 . On March 15, 2010, Family Services Counselor Meike Rice

received a complaint regarding the Center.

5 . The complaint alleged that the Center was transporting

children in its 15 - passenger van from Head Start to the Center

without meeting the proper requir ements.

6. Transporting children in a van without the appropriate

seat belts or child safety restraints is a dangerous activity

that could result in death or serious injury.

7 . Ms. Rice visited the Center on March 15, 2010, and saw

the van with the e ngine running and two staff members, Latrice

Evans and Lisa Perkins, sitting in the front seat.

8 . Ms. Rice asked the staff to turn off the van. She then

looked inside the van and observed young children without proper

seat belt restraints or car seats.

9 . There were eight children in the van. The first row

had one child; the second row had two children sharing a seat

belt; the third row had two children; and the last row had three

children, one of whom was crawling around, one of whom was in a

car se at, and one of whom was on the bench seat.

10 . Ms. Rice spoke to the van driver, Latrice Evans, and

the passenger, Lisa Perkins, whom she knew better as Arial

Perkins, and told them of her concerns regarding the complaint

and their transportation of the c hildren.

11 . Ms. Rice documented on her complaint review that the

driver lacked a driver ' s license, and that her personnel record

did not have a copy of the certification to grant them approval

to transport children. Moreover, the van had not been certif ied

by the D epartment as appropriate for transporting children in a

day care facility setting.

12 . Ms. Rice had been previously informed by Ms. Perkins

that she was employed by the facility since December of 2009,

but the staff was unable to provide any d ocumentation of her

employment history on the date of Ms. Rice ' s visit.

13 . Ms . Rice found that Ms. Perkins was missing Form 5131,

the background screening and personnel file requirement form;

verification of her employment for the past two years;

documen tation of an attestation of good moral character; and a

fingerprint card for purposes of conducting the state and

federal criminal checks.

14 . Ms. Perkins was employed by the Center from

November 16, 2009 , until January 2010, and was only visiting the

Cen ter on the date of Ms. Rice ' s visit.

15 . After observing the van, Ms. Rice entered the Center

to conduct a count of the children and to review the Center ' s

records.

16 . In the Center, Ms. Rice counted 19 children, putting

the Center at its licensed capac ity. However, when the eight

children in the van were counted, the Center far exceeded its

licensed capacity.

17 . Ms. Rice informed the Center ' s d irector, Ms. Wallace,

that she needed to call parents to pick up their children in

order for the Center to g et back into compliance with its

licensed capacity.

18 . Ms. Rice spent about two hours at the Center on her

March 15, 2010 , visit.

19 . Ms. Rice issued an Administrative Warning letter to

the facility regarding its overall licensed capacity, room

capacity , transportation logs, and lack of background screening

documents.

20 . Ms. Rice returned to her office to address the matters

she discovered while investigating the complaint.

21 . Ms. Rice and her supervisors determined the violation

based upon the lac k of proper child restraints for the young

children in the van was a Class I violation from which a fine

could ensue in the amount of a minimum of $100 to a maximum of

$500.

22 . The Department decided to impose the maximum fine of

$500 based on the number of children who were lacking the

required safety restraints and the lack of seat belts.

23 . Violation 2 was based upon the employment history

check of Ms. Perkins. Since this was the third Class II

violation against the Center, having had previous viola tions on

June 23, 2009, and November 10, 2009, the fine would be $60 per

each day of violation.

24 . Ms. Rice found no documentation at the time of her

inspection concerning Ms. Perkins ' employment history, and

therefore, made the beginning point for calcu lating the fine

December 31, 2009, and culminating on her March 15, 2010, visit,

for a total of 49 days. At $60 per day, the fine amounted to

$2,940.

25 . Violation 3 was based on the lack of a fingerprint

card for Ms. Perkins. This was the first occurre nce of

violating the standard, the Center having been previously cited

on November 10, 2009, with a warning, so a flat $50 fine was

imposed.

26 . Violation 4 concerned having the attestation of good

moral character on hand for an employee. T he Center was

previously cited three times for th is offense . This C lass III

violation was documented on June 23, 2009, November 10, 2009,

and December 1, 2009 . Using the same time period as she used

for the other major fine, Ms. Rice issued a fine of $30 per day

for 4 9 days , t otal ing $1 , 470 .

27 . Ms. Rice received by fax a copy of the local

background check, a copy of the fingerprint card, a copy of

final disposition of a criminal case, and a copy of an FDLE

report on March 16, 2010, concerning Ms. Perkins. This

reinf orced her belief that Ms. Perkins was employed by the

Center.

28 . Ms. Rice worked closely with the Center ' s d irector,

Ms. Wallace, on each visit to ensure the staff files were

reviewed and contain ed the required information.

29 . Ms. Wallace , the d irector of the Center since

November 29, 2009, provided at the hearing exhibits regarding

Ms. Perkins, many of which were not previously provided by fax

to Ms. Rice. These exhibits included: Ms. Perkins reference

check form; her background screening and transfe r request; her

employment history; her Background Screening and Personnel File

Requirements form; her CPR and first aid cards; her Application

for Employment in a Child Care Facility; her A ttestation of Good

Moral Character; her C hild A buse and N eglect R ep orting

R equirements Acknowledgement; her Application for Employment ;

her FDLE records check ; her Sheriff ' s Office record check ; her

f ingerprint card ; and her l etter of discharge dated January 6,

2010. These documents demonstrate that Ms. Perkins was an

em ployee at the Center until January 6, 2010, but not on the

date of Ms. Rice ' s inspection, March 15, 2010.

30 . Charles Smith, the Owner of the Center, did not

dispute the violations concerning the eight children in the van.

CONCLUSIONS OF LAW

31 . The Di vision of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569, 120.57(1), and 120.60, Fla. Stat.

32 . Section 402.310, Florida Statutes, provides, in

relevant part:

Disciplinary actions; hea rings upon denial,

suspension, or revocation of license or

registration; administrative fines. -

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of

any provision of ss . 402.301 - 402. 319 , or the

rules adopted there under:

1. Impose an administrative fine not to

exceed $100 per violation, per day.

However, if the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrativ e fine, not to exceed $500 per

violation per day in addition to or in lieu

of any other disciplinary action imposed

under this section.

2 . Convert a license or registration to

probation status and require the licensee or

registrant to comply with the te rms of

probation. A probation - status license or

registration may not be issued for a period

that exceeds 6 months and the probation -

status license or registration may not be

renewed. A probation - status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probation - status licensee or registrant is

not in compliance with the terms of

probation or that the probation - status

licensee or registrant is not making

sufficient progress toward compliance with

ss. 402.301 - 402.319 .

33 . Concerning the protocols for transporting children,

Florida Administrative Code Rule 65C - 22.001 provides, in

relevant part:

(6) Transportation. For the purpose of

this section, vehicles refer to those tha t

are owned, operated or regularly used by the

child care facility and vehicles that

provide transportation through a contract or

agreement with an outside entity. Parents '

personal vehicles used during field trips

are excluded from meeting the requiremen ts

in paragraphs 65C - 22.001(6)(a)2. , (b) and

(c), F.A.C.

(a) When any vehicle is regularly used by

a child care facility to provide

transportation, the driver shall have the

following:

1. A valid Florida driver ' s license,

2. An annual physical examination which

grants medical approval to drive, and valid

certificate(s) of course completion for

first aid training and infant and child

cardiopulmonary resuscitation (CPR)

procedures.

(b) All child care facilities must comply

with the insurance re quirements found in

Section 316.615(4), F.S.

(c) All vehicles regularly used to

transport children shall be inspected

annually by a mechanic to ensure proper

working order. Documentation by the

mechanic shall be maintained in the vehicle.

(d) The ma ximum number of individuals

transported in a vehicle may not exceed the

manufacturer ' s designated seating capacity

or the number of factory installed seat

belts.

(e) Each child, when transported, must be

in an individual factory installed seat belt

or f ederally approved child safety

restraint, unless the vehicle is excluded

from this requirement by Florida Statute.

(f) When transporting children, staff - to -

child ratios must be maintained at all

times. The driver may be included in the

staff - to - child r atio. Prior to transporting

children and upon the vehicle(s) arrival at

its destination, the following shall be

conducted by the driver(s) of the vehicle(s)

used to transport the children:

1. Driver ' s Log. A log shall be

maintained for all children b eing

transported in the vehicle. The log shall

be retained for a minimum of four months.

The log shall include each child ' s name,

date, time of departure, time of arrival,

signature of driver, and signature of second

staff member to verify the driver ' s l og and

that all children have left the vehicle.

2. Upon arrival at the destination, the

driver of the vehicle shall:

a. Mark each child off the log as the

children depart the vehicle;

b. Conduct a physical inspection and

visual sweep of the vehicle to ensure that

no child is left in the vehicle; and

c. Sign, date and record the driver ' s

log immediately, verifying that all children

were accounted for, and that the visual

sweep was conducted.

3. Upon arrival at the destination, a

secon d staff member shall:

a. Conduct a physical inspection and

visual sweep of the vehicle to ensure that

no child is left in the vehicle; and

b. Sign, date and record the driver ' s

log immediately, verifying that all children

were accounted for and that the log is

complete.

34 . Florida Administrative Code Rule 65C - 22.006,

concerning required personnel records, provides:

(4) Personnel Records. Records shall be

maintained and kept current on all child

care personnel, as defined by Section

402.302(3) , F.S., and household members if

the facility is located in a private

residence. These shall include:

(a) An employment application with the

required statement pursuant to Section

402.3055(1)(b), F.S.

(b) Position and date of employment.

(c) CF - F SP Form 5337, March 2009, Child

Abuse & Neglect Reporting Requirements,

which is incorporated by reference, must be

signed annually by all child care personnel.

(d) Initial Screening. Screening

information must be documented on CF - FSP

Form 5131, March 2009, Background Screening

and Personnel File Requirements, which is

incorporated by reference. Screening

includes the following:

1. Level 2 screening as defined in

Section 435.04, F.S., which includes at a

minimum Federal Bureau of Investigations

(FBI), Florida Department of Law Enforcement

(FDLE), and local law enforcement records

checks. For the purpose of issuing a

license, any out - of - state criminal offense,

which if committed in Florida, would

constitute a disqualifying felony offense,

shall b e treated as a disqualifying felony

offense for screening purposes under this

rule.

2. An employment history check must

include the previous two years, which shall

include the applicant ' s job title and a

description of their regular duties,

confirmatio n of employment dates, and level

of job performance. Failed attempts to

obtain the employment history must be

documented in the personnel file, and

include date, time, and the reason the

information was not obtained.

3. CF Form 1649A, January 2007, C hild

Care Attestation of Good Moral Character,

which is incorporated by reference, must be

completed for all child care personnel

annually or in accordance with the local

licensing authority. A copy of the CF Form

1649A may be obtained from the department ' s

website at www.myflorida.com/childcare .

(e) Re - Screening. A screening conducted

under this rule is valid for five years, at

which time a statewide re - screen must be

conducted.

1. The five year re - screen is required

for all child care personnel.

2. The five year re - screen must include,

at a minimum, statewide criminal records

checks through the FDLE and a local criminal

records check.

3. CF Form 1649A Child Care Attestation

of Good Moral Character must be completed

for all child care pers onnel annually. A

copy of the CF 1649A may be obtained from

the department ' s website at

www.myflorida.com/childcare .

4. Re - screening. Re - screening

information for all child care personnel

must be documented on CF - FSP Form 5131 March

2009, Background Screening and Personnel

File Requirements.

5. A copy of all background screening

clearance documents for the director and

owner must be included in the department ' s

official licensing file or in accordance

with the appropriate local licensing agency

re quirements.

6. Break In Employment. Child care

personnel must be re - screened as outlined in

paragraph (4) (d) above following a break in

employment in the child care industry that

exceeds 90 days.

7. Leave of Absence. If child care

personnel tak e s a leave of absence, such as

maternity leave, extended sick leave,

migrant child care programs, etc.,

re - screening is not required unless the five

year re - screen has come due during the leave

of absence.

(f) Copies of training information and

creden tials as described in subsections

65C - 22.003(4), (6) and (7) ; F.A.C., as

applicable.

(g) Driver ' s license and driver physical

examination documentation. A copy of the

driver ' s license and the physician

certification, or another form containing

the sam e elements of the physician

certification, granting medical approval to

operate the vehicle, and valid

certificate(s) of course completion for

first aid training and infant and child

cardiopulmonary resuscitation (CPR)

procedures must also be maintained in the

driver ' s personnel file.

35 . Florida Administrative Code Rule 65C - 22.010,

concerning enforcement, provides, in relevant part, as follows:

(1) Definitions.

(a) " Day " means a weekday, excluding

weekends and holidays.

(b) " Probation " is a licen sing status

indicating the license is in jeopardy of

being revoked or not renewed due to

violations of licensing standards.

Probation may require the licensee to comply

with specific conditions intended to ensure

that the licensee comes into and maintains

compliance with licensing standards.

Examples of such conditions are: a deadline

to remedy an existing violation, a specified

period during which compliance with

licensing standards must be strictly

maintained; and specified conditions under

which the f acility must operate during the

probationary period.

(c) " Standards " are requirements for the

operation of a licensed facility provided in

statute or in rule.

(d) " Violation " means a finding of

noncompliance by the department or local

licensing autho rity of a licensing standard.

1. " Class I Violation " is an incident of

noncompliance with a Class I standard as

described on CF - FSP Form 5316, March 2009.

Child Care Facility Standards Classification

Summary, which is incorporated by reference.

A co py of the CF - FSP Form 5316 may be

obtained from the department ' s website at

www.myflorida.com/childcare. Class I

violations are the most serious in nature,

pose an imminent threat to a child including

abuse or neglect and which could or does

result in dea th or serious harm to the

health, safety or well - being of a child.

2. " Class II Violation " is the second or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF - FSP Form 5316. Class II violations are

less seriou s in nature than Class I

violations, and could be anticipated to pose

a threat to the health, safety or well - being

of a child, although the threat is not

imminent.

3. " Class III Violation " is the third or

subsequent incident of noncompliance with an

i ndividual Class III standard as described

on CF - FSP Form 5316. Class III violations

are less serious in nature than either Class

I or Class II violations, and pose a low

potential for harm to children.

4. " Technical Support Violations " are

the first o r second occurrence of

noncompliance of an individual Class III

standard or the first occurrence of

noncompliance of an individual Class II

standard.

(2) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation. In addition, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the facility to correct

the violation when determini ng the

appropriate disciplinary sanction.

(b) Each standard violation has an

assigned classification based on the nature

or severity of the violation(s) as

identified within the Child Care Facility

Standards Classification Summary, CF - FSP

Form 5316.

(c) A violation of a Class II standard

that results in death or serious harm to a

child shall escalate to a Class I violation.

(d) Failure to submit a completed CF - FSP

Form 5017, Application for a License to

Operate a Child Care Facility, which is

inco rporated by reference in paragraph 65C -

22.001(1)(a), F.A.C., for renewal of an

annual license at least 45 days prior to the

expiration date of the current license

constitutes a licensing violation. The

department shall issue an administrative

complaint im posing a fine of $50.00 for the

first occurrence, $100.00 for the second

occurrence, and $200.00 for each subsequent

occurrence within a five year period.

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

1. Class I Violations.

a. For the first and second violation

of a Class I standard, the department shall,

upon applying the factors in Section

402.310(1), F.S., issue an administrative

complaint imposing a fine not less than $100

nor more than $500 per day for each

violation, and may impose other disciplinary

sanctions in addition to the fine.

b. For the third and subsequent

violation of a Class I standard, the

department shall issue an administrative

comp laint to suspend, deny or revoke the

license. The department, upon applying the

factors in Section 402.310(1), F.S., may

also levy a fine not less than $100 nor more

than $500 per day for each violation in

addition to any other disciplinary sanction.

2 . Class II Violations.

a. For the first violation of a Class

II standard, the department shall issue a

formal warning letter stating the

department ' s intent to take administrative

action if further violations of the standard

occur. The violation wil l be classified as

" Technical Support. "

b. For the second violation of the same

Class II standard, the department shall

issue an administrative complaint imposing a

fine of $50 for each violation. This

violation, and subsequent violations, of the

sam e standard within a two year period will

be classified as " Class II. "

c. For the third violation of the same

Class II standard, the department shall

issue an administrative complaint imposing a

fine of $60 per day for each violation.

d. For the fourth violation of the same

Class II standard, the department shall

issue an administrative complaint placing

the provider ' s license on probation status

for a period not to exceed six months, and

the department shall also issue an

administrative complaint imposing an

additional fine of $75 per day for each

violation.

e. For the fifth and subsequent

violation of the same Class II standard, the

department shall issue an administrative

complaint to suspend, deny, or revoke the

license, and the departmen t shall also issue

an administrative complaint imposing an

additional fine of $100 per day for each

violation.

3. Class III Violations.

a. For the first violation of a Class

III standard, technical assistance shall be

provided. The violation wil l be classified

as " Technical Support. "

b. For the second violation of the same

Class III standard, the department shall

issue a formal warning letter stating the

department ' s intent to take administrative

action if further violations of the standard

are found. The violation will be classified

as " Technical Support. "

c. For the third violation of the same

Class III standard, the department shall

issue an administrative complaint imposing a

fine of $25 for each violation. This

violation, and sub sequent violations of the

same standard within a two year period will

be classified as " Class III. "

d. For the fourth violation of the same

Class III standard, the department shall

issue an administrative complaint imposing a

fine of $30 per day for e ach violation.

e. For the fifth violation of the same

Class III standard, the department shall

issue an administrative complaint placing

the provider ' s license on probation status

for a period not to exceed six months, and

the department shall also i ssue an

administrative complaint imposing a fine of

$40 per day for each violation.

f. For the sixth and subsequent

violation of the same Class III standard,

the department shall issue an administrative

complaint to suspend, deny, or revoke the

licen se, and the department shall also issue

an administrative complaint imposing a fine

of $50 per day for each violation.

4. Children ' s Health/Immunization

Records Disciplinary Sanctions.

a. For the first violation of a Class

III Children ' s Health an d/or Immunization

standard, technical assistance shall be

provided. The violation will be classified

as " Technical Support. "

b. For the second violation of the same

Class III Children ' s Health and/or

Immunization standard, the department shall

issue a formal warning letter stating the

department ' s intent to take administrative

action if further violations of the standard

are found. The violation will be classified

as " Technical Support. "

c. For the third violation of the same

Class III Children ' s Health and/or

Immunization standard, the department shall

issue an administrative complaint imposing a

fine in the amount of $25 for each

violation. This Class III violation, and

subsequent Class III violations of the same

standard within a two year peri od will be

classified as " Class III. "

d. For the fourth violation of the same

Class III Children ' s Health and/or

Immunization standard, the department shall

issue an administrative complaint imposing a

fine in the amount of $30 for each

violation.

e. For the fifth violation of the same

Class III Children ' s Health and/or

Immunization standard, the department shall

issue an administrative complaint imposing a

fine in the amount of $40 per day for each

violation.

f. For the sixth and subsequent

violation of the same Class III Children ' s

Health and/or Immunization standard, the

department shall issue an administrative

complaint placing the provider ' s license or

registration on probation status for a

period not to exceed six months, and the

departm ent shall also issue an

administrative complaint imposing an

additional fine of $50 per day for each

violation.

3 6 . Ms. Rice ' s investigation clearly showed a violation of

the Department ' s rules regarding proper transport of children.

Mr. Smith ' s accept ance of his responsibility for this violation

as owner of the Center justifies the Department ' s determination

of a Class I violation an d its decision to impose a $500 fine

for this infraction. Further, the Center should not transport

any children in the f uture without ensuring it has the required

number of child safety restraints and seat belts, where

appropriate.

37. The remaining violations (Numbers 2, 3, and 4) at

issue in this matter concern former employee Lisa Perkins who

was present in the van as a passenger on March 15, 2010, when

Ms. Rice made her inspection. The evidence produced at hearing

demonstrates that Ms. Perkins was not employed by the Center on

March 15, 2010, but was visiting her friend Latrice Evans.

Ms. Perkins ' employment had been terminated on January 7, 2010.

However, the evidence is clear that Ms. Perkins had been

employed by the Center from November 16, 2009, through

January 6 , 2010, a total of 22 working days.

38. Ms. Wallace, the Center ' s d irector, was unable to

produce for Ms. Rice the required employment records on

Ms. Perkins on March 15, 2010, the date of the inspection. At

hearing, Ms. Wallace produced all the required employment

records for Ms. Perkins, and they appeared to be authentic and

in existence prior to the in spection date of March 15, 2010.

Since the records existed on the date of Ms. Rice ' s inspection,

the only issue remaining is why they were not made available to

Ms. Rice, and whether the Center can be excused for not

physically having the re cords on site at the time of the

inspection brought about because of an anonymous complaint .

39. Florida Administrative Code Rule 65C - 22.006(4)

requires that the personnel records be " maintained and kept

current on all child care personnel. " " Child care personnel "

ar e defined as " all owners, operators, employees, and volunteers

working in a child care facility. " § 402.302(3), Fla. Stat.

Rule 65C - 22.006(1) requires that such records be " maintained at

the facility and shall be available during the hours of

operation f or review by the licensing authority. "

40. Licensure disciplinary statutes are penal in nature

and must be construed strictly, with any ambiguities in the

statutes or rules resolved in favor of the licensee. See State

ex rel. Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487 (Fla.

1973); Lester v. Dep ' t o f Prof ' l & Occupational Regulations,

State Bd. of Med . Exam ' r s , 348 So. 2d 923 (Fla. 1st DCA 1977 ).

4 1 . The records concerning Ms. Perkins were clearly not

available at the Center when Ms. Rice conduc ted her inspection

on March 15, 2010. The Department ' s statutes and rules do not

address whether records of former employees must be maintained

at the child care facility and available for inspection .

Because these statutes and rules are penal in nature, they must

be strictly construed. A strict reading of S ection s 402.301 -

302, as well as Rule 65C - 22.006(1) and (4), do not lead to the

conclusion that the records of former employees must be

maintained at all times on the premises of a licensed child care

facility for review by Department inspectors. T he more

reasonable reading of the rule is that only the records of

currently - employed personnel must be maintained and available

for inspection . Despite the fact that Ms. Perkins, a former

employee, was sitt ing in the van on the date of Ms. Rice ' s

inspection ; and despite the fact that Ms. Rice , not

unreasonably, assumed that Ms. Perkins was an employee on the

date of the inspection, the Department did not prove she was an

employee of the Center on that date . In fact, Respondents

proved that Ms. Perkins was not an employee of the Center on

March 15, 2010, having been discharged on January 6 , 2010.

Since Ms. Perkins was not an employee at the time of the

inspection in question, the Center cannot be held respon sible

for not being able to produce her employment records that day.

4 2 . The Department offered evidence of violations of the

occupancy standards for children at the Center, but offered no

evidence of an appropriate fine for such violations on the date

of the March 15 inspection. However, the Department suggested

that placing the Center on probationary status would help

resolve this issue. That appears to be a reasonable solution.

4 3 . The violations that were the subject of these

proceedings occurred in the early months of Ms. Wallace ' s tenure

as d irector of the Center. While this in no way excuses the

Center from compliance with the Department ' s statutes and rules,

it supports the need for a probationary period to allow the

Center , under Ms. Wallace ' s guidance , to get on the right track.

Accordingly, the Center should be placed on probationary status

for a period of six months. During this period, the Department

may ensure that the Center compl ies with all applicable statutes

and rules concerning reco rdkeeping, transportation of children,

and compliance with the capacity requirements for licensed child

care centers.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Department issue a final order

impo sing a fine of $500 against Respondents and placing 3 in 1

Childcare and Learning Center on probationary status for six

months.

DONE AND ENTER ED this 15th day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law J udge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th da y of November , 2010 .

COPIES FURNISHED :

Charles Smith

3 in 1 Childcare and Learning Center

4025 Emerson Street

Jacksonville, Florida 32207

Roger L. D. Williams, Esquire

Department of Children

and Famil y Services

5920 Arlington Expressway

Jacksonville , Florida 32231

George H. Sheldon, Secretary

Department of Children

and Family Services

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gerald B. Curington, General Counsel

Department of Children

and Family Services

B uilding 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, 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.