10-005049 Department Of Children And Family Services vs. Educational Child Care Center, Inc. Status: Closed Recommended Order on Monday, July 25, 2011.

Summary: Certain violations alleged in Second Amended Administrative Complaint were proven; others were not. Recommend suspension of child care facility license, training, and imposition of a fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 10 - 5049

)

EDUCATIONAL CHILD )

CARE CENTER, INC., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

on January 1 1 and 12 , February 3, and March 3, 20 11 , in

Gaine sville, Florida, before the Division of Administrative

Hearings, by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner : Lucy Goddard - Teel , Esquire

Department of Children

and Family Services

Post Office Box 390, Mail Sort 3

Gainesville , Florida 3 2 6 02 - 0390

For Respondent : Matthew Wells, Esquire

304 South Albany Avenue

Tampa , Florida 33 606

J. D. Packwood, Jr., Esquire

Post Office Box 140504

Gainesville, Florida 32614

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent

committed the violations as alleged in the Second Amended

Administrative Complaint and, if so, what is t he appropriate

penalty.

PRELIMINARY STATEMENT

On June 2 , 20 1 0, the Department of Children and Fam il y

Serv i c es (Department) issued a n Administrative Complaint to

Respondent , Educational Child Care Center (hereinafter ECCC or

the Center) seeking to impose an administrative fine for alleged

violations of section 402.305(4)(a) , Florida Statutes (2010),

and Florida Administrative Code Rul e 65C - 2 2 .00 1 ( 4 ) , for fail ure

to maintain proper staff - to - children ratio. ECCC disputed the

allegations of the Administrative Complaint and requested an

administrative hearing. The Department forwarded the request

for a hearing to the Division of Administrative Hearings on or

about Ju l y 12 , 20 10, and the case was assigned to Administrative

Law Judge Charles Stampelos . The final hearing was set for

October 15, 2010.

The Department filed a Motion for Leave to File Amend ed

Administrative Complaint, which was granted. The Amended

Administrative Complaint , in addition to seeking to impose

multiple administrative fines, sought to revoke Respondent's

license for multiple violations of failure to maintain proper

staff to child ratio, and other violations including violations

of Florida Administrative Code Rules 65C - 22.001(5),(6)(d) and

(11)(a) regarding failure to adequatel y supervise a child in its

care; transporting more than the maximum allowed individuals in

the Center's van; unauthorized administration of medication; and

two additional staff - to - children ratio violations.

On November 4, 2010, the cas e was transferred t o the

undersigned. On November 29, 2010, the Department issued an

Emergency Suspension Order and filed a Motion for Leave to File

Second Amended Administrative Complaint . The motion to amend

was granted and the Second Amended Administrative Complaint

all eged several additional violations: improper chi ld

discipline; inadequate staff - to - children ratio; and violations

of personnel requirements . Due to the multiple amendments to

the Administrative Complaint, motion s for continu ance w ere

granted, and the case proceeded on the Second Amended

Administrative Complaint , which sought to impose an

administrative fine of $3,045.00 and the revocation of ECCC's

license .

At hearing, the Department presented the testimony of 1 6,

including rebuttal, witnesses. The Department's Exhibits

numbered 1 through 7 were admitted into evidence. A ruling was

reserved on Exhibits numbered 8 and 9 . Upon consideration,

Exhibit s 8 and 9 are rejected. Respondent presented the

testimony of nine witnesses . Respondent's Exhibit numbered 1

w as admitted into evidence.

At the conclusion of the presentation of evidence, the

Department made an ore tenus motion to conform the pleadings to

the evidence, asserting that the evidence presented established

that add itional violations were committed. The motion was

denied. See Pilla v. The School Board of Dade County , 655 So.

2d 1312 (Fla. 3d DCA 1995).

A four - volume T ranscri pt was filed on April 19, 2011 . The

parties requested and were allowed 30 days following the filing

of the transcript to file proposed recommen ded orders. A motion

for Extens ion of Time was filed and granted. Subsequently,

Respondent filed another unopposed Motion for Leave to File Out

of Time, due to computer problems. The motion was gran ted. The

parties filed Proposed Recommended Order s , which ha ve been

considered in the preparation of this Recommended Order.

All references to statutes are to Florida Statutes (20 10 )

unless otherwise noted.

FINDINGS OF FACT

1. The Department of Children and Famil y Serv i c es is the

agency charged with the responsibility of licensin g child care

facilities in the S tate of Florida. § 402.305, Fla. Stat.

2. Respondent was licensed by the Department to operate a

child care facility located in Gainesv ille, Florida.

3. Joyce Vinson is the owner/director of ECCC, and has

been since it opened in 2001. Ms. Vinson operated a home

daycare for approximately five years prior to opening ECCC.

I nadequate supervision -- W.G. left behind 1/

4. The Second Amended Administrative Complaint charged

Respondent with inadequate supervision of a child in violation

of Florida Administrative Code Rule 65C - 22.2011(5).

Specifically, the complaint alleges as follows:

On July 22, 2010, staff members, F.S . and

V.L., left a 7 year old disabled child,

W.G., behind on a field trip to Duval

Elementary. Staff with another provider

found the child - who was unable to spea k and

identify himself - in a fie ld behind the

school. Law enforcement was called and the

child was later picked up by his parents.

5. Andi Lybrand is the training and curriculum coordinator

for the Early Learning Coalition of Alachua County. Ms. Lybrand

visited ECCC to observe curriculum and helped coordinate events.

6 . Ms. Lybrand organized an event (a play) that was held

at Duval Elementary (Duval) , to which children from day care

centers were invited.

7 . Following the performance, a teacher from another

facility brought a boy , W.G., into the cafete ri a. The boy was

found alone in a grassy area behind the cafeteria. He appeared

to be upset. W.G. is a child with a disability. Ms. Lybrand

placed a 911 call.

8 . While this was happening, the van carrying some of the

ECCC children began the trip back to the center. S hortly after

the van left Duval Elementary , an employee of ECCC, Felita

Sallet, performed a head count, and realized that one of the

Center's children, W.G. , was not on the van. The van then

immediately returned to Duval Elementary. A young woman who was

a n ECCC volunteer was sent into the building to retrieve W .G.

9 . Shortly thereafter, an ECCC employee, Vanessa Latson,

appeared and advised that she was there to pick up W.G.

However, the law enforcement officer who responded to the 911

call would n ot release W.G. to the volunteer or to Ms. Latson ,

but would only release the child to a parent .

10. Ms. Vinson then received a call from the school

principal, and returned to the school.

11. W.G.'s mother, who did not testify, w as notified of

the si tuation and went to Duval to pick up her child.

Ms. Vinson and W.G.'s mother left Duval together with W.G. in

the mother's car. W.G.'s mother returned W.G. to ECCC for the

rest of the day. Up until such time as ECCC was closed due to

the Emergency Suspe nsion Order, W.G. remained enrolled at ECCC.

The Department's family services licensing counselor, Neshma

Cruz - Gil, was advised by W.G.'s mother that she had no concerns

for W.G.'s safety while in the care of ECCC.

12. Alice Engram - Hammed, a child protection investigator,

investigated this incident and verified findings of inadequate

supervision.

Transportation violation

13 . Ms. Cruz - Gil went to ECCC on July 22, 2010, to further

investigate the inadequate supervision allegation set forth

above. W hile there, she cited ECCC with additional violations,

including that of transporting more passenger s on the ECCC van

then the desi gned capacity. Specifically, the Second Amended

Administrative Co mplaint alleged that on July 22, 2010, two ECCC

employees t ransported 18 individuals (2 adults and 16 children)

in a van with a maximum capacity of 15 passengers.

14 . This allegation was based upon a determination made by

Ms. Cruz - Gil when she arrived at ECCC following the Duval

incident. As a family services counselor, Ms. Cruz - Gil is

responsible for inspecting child care facilities and family

child care homes. ECCC was one of the child care facilities

that she inspected.

1 5 . Ms. Cruz - Gil examined a field trip log and interviewed

ECCC staff in making her determination that too many people were

on the van . The field trip log lists 15 children's names. As

there were two staff members and a volunteer on the trip,

Ms . Cruz - Gil concluded that there were 18 persons on a van with

only 15 seat belts.

1 6 . However, according to Ms . Vinson, the field trip log

was not a list of those riding on the van, but of those who

attended the play. Three children were transported by car.

This was verified by Ms. Sallet, who was on the van for the

Duval fieldtrip, and who is "one hundred percent sure" that all

of the children riding in the van were properly restrained and

secured with seat belts. Ms. Sallet's testimony in this regard

is credible and is accepted as fact.

Inadequate supervision - May 17, July 22, and July 30, 2010

1 7 . The Second Amended Administrative Complaint alleges

that on July 30, 2010, the Department's licensing counselor

observed W.G. in a classroom alone without ad ult supervision,

using a computer; that the same violation occurred on July 22,

2010 (W.G. alone using a computer in classroom unsupervised);

and that on May 17, 2010, O.K. w as observed alone and

unsupervised in a classroom.

1 8 . O n May 17, 2010, Sabrin a Roper, a speech language

pathologist employed by Fundamental Therapy Solutions, Inc.

(FTS), was at ECCC along with a speech assistant from FTS.

Ms. Roper described Ms. Vinson as very receptive to FTS coming

to ECCC to provide speech therapy to those chi ldren attending

ECCC who were in need of that service, and as an advocate for

the children.

1 9 . Ms. Cruz - Gil made a routine inspection of ECCC while

Ms. Roper and the speech assistant were there. Ms. Cruz - Gil

observed the speech assistant get up and leave the room, leaving

the child who was receiving speech services in the room alone.

Ms . Roper observed the speech assistant enter the room where

Ms. Roper was working to collect materials to use whi le

providing therapy to the child. Ms. Roper described the time

the other therapist was in the room with her as "not long."

20 . On July 22, 2010, wh en arriving at ECCC to investigat e

the Duval incident, Ms. Cruz - Gil observed W.G. alone in a room

work ing on the computer (the "computer room") . She saw the same

student alone working on the computer again on July 30, 2010,

resulting in citations for this violation on those two dates.

2 1. Ms. Vinson , however, maintains that she was

supervising W.G. in th e computer room, that she got up to answer

the door when Ms. Cruz - Gil knocked to enter; that the computer

room is five feet away from the front door; and that W.G. was

only alone in the computer room during the short time it took

for her to open the door for Ms . Cruz - Gil . Ms. Vinson added

that she did not have a floater that day.

Unauthorized administration of medication

22 . The Second Amended Administrative Complaint charged

Respondent with the following:

On or about late June through early July

2010 , without parental consent, Respondent's

owner and di rector, J.V., deliberately

administered Ex - Lax to a four - year - old

child, J.P., making him sick. . . . On or

about March through June 2010, the

Respondent's owner and director, J.V.,

deliberately adminis tered Benadryl to

infants.

2 3 . These charges were based on allegations made by two

former employees of ECCC, Angela Holmes and Caroline Rossman.

2 4 . Angela Holmes works as a teacher's aide at Alachua

Academy Juvenile Detention Center. She was previously employed

at ECCC from March 1 to June 4, 2010. Ms. Holmes accused

Ms. Vinson of a litany of inappropriate actions including giving

babies Benadryl to make them sleep. Ms. Holmes alleged that

Ms. Vinson sent her to the store with money to purch ase liquid

Benadryl; that Ms. Vinson kept the Benadryl in her drawer ; that

she saw Ms. Vinson gave it to infants in the baby room to make

them sleep on at least five occasions; and that no one else was

in the room when this happened . Ms. Holmes' recollect ion as to

when this happened during her short tenure with ECCC was

uncertain and imprecise. Ms. Holmes did not report this to

anyone until about two months after she left employment at ECCC.

2 5 . Another of the many inappropriate actions alleged by

Ms. Holmes to have been committed by Ms. Vinson involved the

unauthorized administration of Ex - L ax to a child . According to

Ms. Holmes, Ms. Vinson sent Carolyn Rossman, another former

employee o f ECCC, t o purchase E x - Lax; that Ms. Vinson asked

Ms. Holm es to give Ex - Lax to the child; that Ms. Holmes refused;

and that she observed Ms. Vinson give the child Ex - Lax.

2 6 . Caroline Rossman worked at ECCC for a few months ,

primarily in the infant room . Ms. Rossman was uncertain as to

when her employment start ed and ended. Ms. Rossman testified

that Ms. Vinson gave her money to purchase Ex - Lax at the store ,

and that a f terwards, she witnessed Ms. Vinson give the Ex - Lax to

a child, JoP. Ms. Rossman was uncertain as to where in the

daycare facility this occurred, but described it as "up front."

Ms. Rossman was also uncertain as to when this happened du ring

her employment. Generally, Ms. Rossman's testimony was confused

as to the facts , imprecise, and not distinctly remembered.

2 7 . Raellen Hale is the mother of JoP and JaP, who

attended ECCC for a few months in 2010. According to Ms. Hale,

JoP has been diagnosed with global disability disorder, which

affects his motor skills, including his bowel and bladder

continence. JoP was four years old during t he time he attended

ECCC.

2 8 . During the last month JoP attended ECCC (May 2010) ,

JoP complained to his mother that his "bottom" and his stomach

were hurting, to a point that Ms. Hale took JoP to the doctor.

During this period of time, Ms. Hale recalls th at Ms. Vinson

would call her "where it seemed like every Friday at exactly

12:00" telling her to pick up JoP because h e had diarrhea.

According to Ms . Hale, JoP's frequent bouts with diarrhea

stopped when he stopped attending ECCC.

2 9 . The attendance rec ords , however, reflect no attendance

on two consecutive Fridays in May for Ms. Hale's two children.

On the other two Fridays in May, Ms. Hale signed JoP out once,

and JoP's uncle or father signed him out the other Friday. T he

attendance records for May 2010 reflect that on the Fridays in

May on which her children attended, they were s igned out mid - to -

late afternoon. According to Ms. Hale, she was not always able

to pick up her children right after being called. The records

reflect, however, that she on ly signed her children out of ECCC

one Friday in May.

30 . Several employees of ECCC who testified describe ECCC

in an entirely different light than these , and other related,

alleged events.

31 . Frewoini Ghevrghergish ( referred to by all as

" Ms. Frewoini") is employed by ECCC and has been so employed for

10 y ears , primarily in the toddler room . 2 / In addition to

working there for 10 years, all four of her children attended

ECCC at various ages. Ms. Frewoini never w itnessed Ex - Lax or

Ben a dryl admi nistered by Ms . Vinson or by any other staff

member. On the contrary, Ms. Frewoini described a procedure

that was followed before a child received medication. That is,

a parent was required to sign a medication authorization form

containing information a s to when and how much of a medicine was

to be administered. "If they don't sign, we don't give them."

32 . Felita Sallet was employed by ECCC from 2008 until it

closed in November 2010. Her daug hter, who was one - year old in

2008, attended ECCC during that time. Ms. Sallet never had

concerns regarding her daughter's care while at ECCC.

3 3 . Ms . Sallet nev er saw an employee, including

Ms. Vinson, give any medication to any child without prop er

authorization; never heard M s . Vinson discuss improperly

medicating children with Benadryl or Ex - Lax; and noted that

giving a child Ex - Lax was counter - productive since the staff is

responsible for changing a child that soiled his or her clothes.

3 4 . Irma Hall is a 23 - year reti red Alachua County School

Board employee, who was a Head Start teacher for the school

district. She was a volunteer pre - kindergarten (VPK) teacher at

ECCC in 2010. Ms. Hall was never asked by Ms. Vinson to give a

child medication, n or did she hear of any one else being asked to

do so.

3 5 . Tameka Williams worked at ECCC from June 2010 until

the fall of 2010. She was never asked, nor did Ms . Williams

hear Ms. Vinson ask anyone else, to improperly medicate any

child at ECCC. Ms. Williams never saw any EC CC employee

improperly administer any medication to any child at ECCC.

3 6 . Ms. Elise Stewart was employed at ECCC at various

times. However, she was not employed at ECCC in the spring of

2010. During the times she was employed there, she never

witnessed any employee of ECCC, including Ms. Vinson, give any

child Benadryl or any other medication without authorization

from the child's parents.

3 7 . Joyce Vinson described the procedure used at ECCC to

administer medication to children. The center has medication

forms which must be signed by the parent before medication will

b e administered to any child. Ms . Vinson denied that she ever

asked an employee to go to the store to purchase medication;

denied ever giving any child any medication without havin g

written parental authorization, including Ex - Lax or Benadryl ;

and denied calling Ms. Hale every Friday in May 2010 requesting

that she pick up JoP because he soiled his clothes .

Improper Discipline of a Child

3 8 . The Second Amended Administrative Compl aint charged

Respondent with the following:

On or about May 2010, the Respondent's owner

and director, Joyce Vinson, took a disabled

four - year - old child, J.P., outside, and in

front of other children in care, removed all

of his clothing, and hosed him down after he

defecated in his pants. J.P. is not toilet

trained due to his disability.

* * *

During the period May through June 2010, the

Respondent's owner and director, Joyce

Vinson, directed staff not to change J. P.

when he defecated in his pull - ups, and

repeatedly shut J. P. alone in a bathroom

for extended periods of time.

39 . This allegation was based primarily on the testimony

of Ms. Holmes, who asserts that in May 2010, Ms. Vinson

instructed Ms . Holmes to move the ch ildren from the playground

around the side of the building so they could not see; then

Ms. Vinson and Vanessa Latson took JoP outside to the

playground, removed his clothes and washed him off with a garden

hose after JoP soiled his clothes. Ms. Holmes cla ims that she

and Ms. Sallet witnessed this incident.

40 . Ms. Sallet denies ever seeing Ms. Vinson or any other

ECCC employee hose down any child who had soiled his clothes.

Ms. Sallet further denies ever observing a child disciplined,

punished, or shut in a bathroom for soiling his or her clothes.

Ms. Sallet described the process used at ECCC by her and other

employees for cleaning up children who had soiled their clothes.

This process involved using a basin in the bathroom, putting on

sanitary gloves , and using wipes as one would use cleaning a

baby.

41 . The other ECCC employee and volunteer who testified,

Ms. Hall and Ms. Williams, also deny ever observing any child

being hosed down, or otherwise purposefully embarrassed or

humiliated for soiling his or her clothes, at ECCC.

42 . Finally, Ms. Vinson denied hosing JoP down to clean

him up after he soiled his clothing ; denied shutting JoP in the

bathroom , or instructing any employee not to change him , or any

other child, if he had soiled his clothes.

43 . Ms. Hale, JoP's mother, provided pull - ups to ECCC for

her son. She typically picked up JoP around 5:00 in the

afternoon. On several occasions, he had dried fe ces on him. In

other instances, his pull - up was soaking wet and the diaper

would be "full."

44 . Tameka Williams was employed by ECCC from June 2010

until sometime in the fall of 2010. When older children soil ed

their clothes, she would be sent to find clothes. If extra

clothes had not been sent from home, ECCC had extra clothes

available. M s . Williams would often be the person who changed

the clothing of the children who had soiled their clothes.

First, she would clean them with a rag and body soap, wipe them,

and put clean clothes on them. She would then put the soiled

clothes in a bag, seal it, and let the parents know there were

soiled clothes in the bag. Sometimes the clothes needed to be

rinsed. Ms. Williams would rinse the soiled clothes, and hang

them up. If they were not dry, she would put them in a plastic

bag, tie it up, and send it home to the parents. She never

witnessed any children being disciplined, with a hose, locked in

a bathroom, or by any other method, for soiling their clothes.

4 5 . This was the same procedure described by Elise

Stewart, who was employed by ECCC for six years off - and - on.

When a child soiled his clothes, she would take the child to the

bathroom, clean him or her, rinse the soiled clothes and place

them in a plastic bag to go home to the parents.

Out of Ratio/Improper Supervision

4 6 . The Second Amended Administrative Complaint charged

Respondent with the following:

On September 1, 2010 (5th violation), the

Department's licensing counselor observed 18

childr en, including infants, on the

playground being supervised by only one

teacher and one volunteer; other staff were

inside the facility. On August 10, 2010

(4th violation) , the Department's licensing

counselor observed 8 infants being

supervised by only one teacher. During the

period of March through June 2010 (3rd

violation) , the Respondent's staff

repeatedly left the infant room unsupervised

after the infants went to sleep, so that

staff could supervise children or perform

tasks in other parts of the faci lity. On

March 24, 2010 (2nd violation), the

Department's licensing counselor observed

only two teachers supervising a nature walk

with four infants and seven two year olds.

The Respondent was previously cited and

provided technical assistance for this t ype

of violation on February 9, 2009 (twelve

children including infants out in the

playground with only two staff members).

* * *

From March through June 2010, the

Respondent's owner and director, Joyce

Vinson, routinely directed employees to mix

age groups in the facility, on the

playground and on trips; and to supervise

more children than allowed by statute and

rule.

4 7. On March 24, 2010, Ms. Cruz - Gil went to ECCC to

investigate a complaint received by phone made by staff of

another facility regarding a nature walk that took place on

March 12 , 2010. After interviewing the staff person who

reported this incident, and ECCC staff, Ms. Cruz - Gil determined

that the group of children on the nature walk was comprised of a

mixed group of three and fo ur - year - olds on the field trip with

four infants. Ms. Cruz - Gil determined t hat ECCC was out of

ratio of required staff to children. The testimony regarding

the actual number and composition of children on this field trip

was confusing and unclear. But, in any event, she did not

personally see the composition of staff to children on the field

trip, and the field trip did not involve seven two - year olds, or

take place on March 24, 2010 , as charged .

4 8 . The allegation that during March through June 2010,

R espondent's staff repeatedly left the infant room unsupervised

when the infants were asleep, so that staff could supervise

other children or perform other tasks, was based largely on

allegations from Ms. Holme s and Ms. Rossman. According to

Ms. Holmes , she was instructed by Ms. Vinson , on a daily basis,

to leave the children she was supervis ing to clean another part

of the facility, or to leave the infants alone in their cribs

and supervise other children.

4 9 . According to Ms . Rossman , M s . Vinson ins tructed her to

leave the infants unattended once they were asleep , and when a

baby was not asleep, to take the baby outside to the

playground. 3/

50 . In the three years that Ms. Sallet worked at ECCC , she

was never instructed or told that she could leave sleeping

children unattended , and never heard Ms. Vinson tell any other

employee s to do so. According to Ms. Sallet, when ECCC

employees took breaks, even to go to the bathroom, they were

relieved by another employee . According to Ms. Sallet, ECCC

employed a "floater," who would float from room to room to offer

minimal relief for bathroom breaks and the like.

51 . Ms. Williams was not be assigned to a particular room,

but would float from room to room as necessary. Ms. Willia m s

never observed infants unsupervised , and described Ms . Vinson as

being very strict about that.

52 . Ms. Hall, while volunteering at ECCC, never saw

children left unattended and thought that ECCC was overstaffed.

5 3 . Ms . Vinson denies ever instructing any staff member to

leave children unattended. Rather, she instructs them to remain

with the children they supervise at all times. Ms. Vinson

denies instructing staff to leave children in one classroom so

that they can perf orm other facility business.

5 4 . On August 10, 2010, Ms. Cruz - Gil went to ECCC and

observed eight infants in the infant room with only one staff

member present.

5 5 . M s . Vinson , however, maintains that on that day,

Department inspectors came to the facil ity with law enforcement.

She was with the one - year - old class, a staff member, Marisol,

was with the infants, an d Ms. Frewoini was with the two - year -

olds. Ms. Vinson opened to the door and was informed that she

had to deal with certain allegations immedi ately or she would be

shut down. She instructed Marisol to watch the one - year - old

class while she dealt with the inspectors and law enforcement.

She did not have a floater working that day. Consequently,

Marisol ended up watching a combination of infant s and one - year -

olds. At that point, Ms. Cruz - Gil observed eight children in

the infants' room with one staff person , and cited this as a

ratio violation.

5 6 . On September 1, 2010, Ms . Cruz - Gil went to ECCC to

hand deli ver a disqualifying letter to Ms . Vinson regarding an

employee of ECCC. When she arrived, she observed 18 children o n

the playground, including infants, with only one staff member

and one volunteer being present. According to M s . Cruz - Gil,

volunteers cannot be cou nted when calculating the staff - to - child

ratio.

5 7 . Ms . Vinson denies that there were 18 children on the

playground . Ms. Vinson was away from the center and received a

call from staff that Ms. Cruz - Gil was there stating that the

center was out of ratio. Ms. Vinson then ret urned to the center

According to Ms. Vinson, the sign - in sheet for that day reflects

that only 15 children were present and three ECCC staff present.

5 8 . As with most encounters between Ms. Vinson and

Ms . Cruz - Gil, each describe s the other as "screaming " at the

other, not cooperative, and confrontational. The professional

relationship between Ms. Vinson and Ms. Cruz - Gil is poisoned.

In light of this history between them, i t would be ill - advised

for Ms. Cruz - Gil to be involved in any further compliance issues

between the Department and Ms. Vinson .

5 9 . The final allegatio n under this category is that

Ms . Vinson routinely directed employees to mix age groups in the

facility, on the playground, and on field trips. Again, these

allegations are primarily based on representations made by

Ms . Holmes and Ms . Rossman. Ms . Holmes testified that she took

children in the van "half the time" she was there (later

"clarifying" this to "it was like kind of often") , away from the

center for the purpose of maintaining proper ratio; that the van

is a 15 passenger and that we "never had the kids in seat belts

or car seats." She f urther testified that Ms . Vinson directed

her to mix infants and toddlers "maybe two to three times a

week;" and that Ms. Vinson would yell at employees to hurry up,

that a DCF inspector might come by and that they already had a

case against her.

60 . Ms . Rossman testified that three or four times, she

and Vanessa would take children in the large stroller to the

park. The stroller held six child ren and the older children

would walk. It is not clear from this allegation, however, how

old the children were who were in the stroller.

61 . Ms . Sallet described going on nature walks usi ng the

stroller, but that proper ratio was maintained duri ng those

walks. According to Ms . Sallet, the only instance in which

Ms. Vinson directed staff to mix age groups is when Early

Learning Coalition came to ECCC for some kind of activity in

which all of the children participated. At those times,

everyone would all gather in the common area, teachers as well

and students.

62 . Ms. Williams described the nature walks as walk around

the property on a little path, with six kids in the "bye - bye

buggy." Ms. Williams never heard Ms. Vinson instruct employees

to mix differ ent age groups of children together so that ratios

were maintained.

6 3 . Ms. Stewart, who worked there for six years, described

Ms. Vinson as "adamant" about maintaining ratio.

6 4 . Ms. Vinson denies ever instructing any ECCC staff

member to take mixed age groups of children away from ECCC to

manipulate staff to child ratio.

Personnel Violations

6 5 . The Second Amended Administrative Complaint charged

Respondent with the following:

During June and/or July 2010 the Respondent

paid an 11 - year - old - girl child, T.E., (who

also attended the facility with her

siblings ) $10 per week for two or three

weeks to watch the infants in the infant

room by herself. . . . Respondent's owner

and dir ector, Joyce Vinson, has repeatedly

allowed her fiancé, Kevin Wright, who has a

disqualifying offense and has not been

subjected to background screening, to

transport children to and from the facility

with no other child care personnel present.

. . . The facility's director, Joyce

Vinson, hired V.L., even though Vinson knew

that V.L. was not eligible to work in a

child care facility because of her criminal

record for child abuse that occurred at

another child care facility. . . .

Respondent's owner and dir ector, Joyce

Vinson, knowingly falsified training records

for employees. The failure to complete the

training requirements is a continuing Class

III violation with regard to each affected

employee.

6 6 . T.E. is an 11 - year - old female child who attended E CCC

in the summer of 2010. T.E. testified that while she attended

ECCC, she helped watch the babies some times. T . E.'s testimony

regarding whether she was ever alone in the room with the babies

without an adult was inconsistent. On one occasion, Ms. Vinson

gave her $10, which T.E. assumed was payment for watching the

babies.

6 7 . Cassie Tillman is T.E.'s mother and the daughter of

Ms. Rossman. All five of her children attended ECCC for a

period of months in 2010. She recalled that her daughter

received $10 on two occasions, and that her daughter told her it

was for watching the babies.

6 8 . Ms. Stewart, who worked at ECCC for six years, has

seen Ms. Vinson give children money or other gifts for their

birthdays. Ms. Vinson gave Ms. S tewart's grandchildren $5 for

their birthdays.

69 . Ms. Vinson confirmed that she gave $10 to T.E. for her

birthday in the summer of 2010, but denies that it was for

watching babies.

7 0 . Kevin Wright is the fiancé of Ms. Vinson and has known

her since 2006. He holds a degree from Bethune Cookman

University and recently became a contract vendor for the School

Board of Alachua County to be a substitute teacher.

71 . In 1995, Mr. Wright pled nolo contendere to the charge

of possession of cocaine, a third - degree felony. Adjudication

of guilt was withheld and Mr. Wright was placed on probation for

six months, a n d was required to participate in the Life Skills

Program at the Alachua County Adult Detention Center and to seek

ga inful employment.

7 2 . On the date of the Duval incident, a parent had driven

a child to Duval Elementary to see the play. Mr. Wright rode

with the parent. This parent was not properly dressed and

requested Mr. Wright to escort the child from her car i nto the

school. He did so. He was not on the van. This is supported

by Ms. Sallet's testimony regarding who was on the van the day

of the incident. Similarly, Mr. Wright has escorted ECCC

children from the van into the public library.

7 3 . Mr. Wrigh t denies that Ms . Vinson has ever asked him

to transport children who attend ECCC and that he has never done

so. Ms. Vinson denies that she ever asked him to do so. 4 /

7 4 . Ms. Vinson hired Vanessa Latson when the daycare

center where Ms. Latson worked was closing . Ms. Vinson inquired

as to whether or not they would rehire Ms. Latson and was told

that they would. Ms. Latson had been subject to background

screening prior to her employment at the other daycare center.

7 5 . At the time Ms. Latson came to work for Ms. Vinson,

the background screening was req uired every five years, and

Ms. Latson had been screened within that time. However, the

requirements have changed and now every new hire must be

rescreened.

7 6 . Ms. Vinson became aware that Ms. Latson had a criminal

record in her past. Ms. Vinson then inquired about this and ,

when she learned that t his was the case, she fired Ms. Latson.

On September 1, 2010, M s . Cruz - Gil went to ECCC with the letter

regarding Ms. L a tson's disqualifying offense. However, by that

time, Ms. Vinson had learne d of it and already fired Ms. La tson.

7 7 . In 2007, Ms. Latson entered a plea of nolo contender e

to the offense of cruelty to ward a child; ab use without great

harm, a third - degree felony. Adjudication of guilt was

withheld, and she was placed on two - year ' s probation .

7 8 . There is no credible evidence that establishes that

Ms. Vinson knew about Ms. Latson's criminal record prio r to

hiring her.

79 . The final allegation regarding personnel violations is

that Ms. Vinson knowingly falsified training records for

employees. This alle gation was based primarily on Ms . Hol mes's

representations. Ms . Holmes alleged that she observed

Ms . Vinson take her (Ms. Holmes') training certificates and cut -

and - paste the names of other employees; that she observed

Ms. Vinson make copies of CPR cards for other individuals who

did not attend the CPR class and asked Ms . Holmes to laminate

them ; and that Ms. Vinson changed an employee's employment start

date on - line so there would be more time to complete training.

Additionally, Ms. Ro ssman , in confusing and unclear testimony,

assert ed that Ms. Vinson asked Ms. Holme s to take a test for her

(Ms. Ro ss man). It is uncle ar why Ms. Vinson would ask

Ms. Holmes to take the test for Ms. Rossman when Ms. Rossman was

a ble to take the test.

8 0 . Ms. Vinson denies falsifying employees' records.

Ms. Vinson explained that the person takes the class on - line,

then go es to a test center to take the test. Ms. Vinson ca n

then check on - line to see if a person has successfully passed

the course, and she can then print the certificate. Regarding

the allegation that Ms. Vinson told Ms. Holmes to take a test

for Ms. Rossm an, Ms. Vinson asserts that it was Ms. Rossman who

stated that she (Ms. Rossman) was going to ask Ms. Holmes to

take the test for her. According to Ms . Vinson, both Ms. Holmes

and Ms. Rossman were supposed to take a test on a Saturday in

early June, but d id not show up to take the test. When

Ms. Rossman came back to work th e following Monday, Ms . Vinson

informed her she could not work because she had not taken the

test. Ms. Vinson asserts that at that point, Ms. Rossman

threatened to close her down. Ms. Holmes did not return to

work.

8 1 . Several witnesses who had been employees of ECCC prior

to its closure denied ever seeing Ms. Vinson do this. As with

many of the other alleg ations made by Ms. Holmes and

Ms . Rossman, in order to find these the allegations are true,

Ms. Vinson would have done all of these things in front of only

these two employees, but never in front of any other employee,

regardless of how long they worked for Ms. Vinson. 5/

8 2 . Pamela Buckha m is the Regional Safety Program Manager

for the Department, and is in charge of child care licensing for

the northeast region. Ms. Buckham signed the Second Amended

Administrative Complaint.

8 3 . It was primarily Ms. Buckham's decision to seek

revocation of ECCC's child care license. Ms. Buckham decided to

seek revocation rather than impose lesser sanctions because she

believed that the children who attend ECCC are in danger.

Ms. Buckham based this conclusion on the numerous class I

violations alleged t hat involved child safety, the seriousness

of some of the violations, and that the other violation s were

repea t violations. Further, Ms . Buckham described dealings with

ECCC as being met with "a lack of cooperation ."

CONCLUSIONS OF LAW

8 4 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. This proceeding is

§ 120.57(1)(k) .

8 5 . The Department of Children and Famil ies is the agency

charged with the responsibility of licensing child care

facilities in the state of Florida. § 402 .305 , Fla. Stat.

8 6 . Section 402.310 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;

administrative fines. --

(1)(a) The department or local licensing

agency may impose an y of the following

disciplinary sanctions for a violation of

any provision of ss. 402.301 - 402.319 or

rules adopted thereunder :

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

administrative 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 terms of

probation . . . . 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 regi strant is

not in compliance with the terms of

probation. . . .

3. Deny, suspend, or revoke a license or

registration.

(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 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 previo us violations of the licensee.

(emphasis a d ded ) .

8 7 . Section 402.305(2) reads i n pertinent part as follows:

402.305 Licensing standards; child care

facilities. --

* * *

(2) PERSONNEL. -- Minimum standards for child

care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

sc reening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

* * *

(c) Minimum age requirements. Such minimum

standards shall prohibit a person und er the

age of 21 from being the operator of a child

care facility and a person under the age of

16 from being employed at such facility

unless such person is under direct

supervision and is not counted for the

purposes of computing the personnel - to - child

r atio.

8 8 . Florida Administrative Code Rule 65C - 22.006(4) sets

forth the required content of personnel records, including Level

2 screening information and copies of training information and

credentials.

8 9 . Florida Administrative Code Rule 65C - 22.003 specifies

training requirements for child care personnel.

90 . Florida Administrative Code Rule 65C - 2 2 .0 0 1 reads in

pertinent part as follows:

65C - 22.001 General Information.

(4) Ratios.

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

established in Section 402.305(4), F.S., is

based on primary responsibility for the

direct care of children, and applies at all

times while children are in care.

(b) Mixed age groups.

1. In groups of mixed age ranges, where

child ren under one year of age are included,

one staff member shall be responsible for n o

more than four children of any age group, at

all times.

2. In groups of mixed age ranges, where

children one year of age but under two years

of age are included, one staf f member shall

be responsible for no more than six children

of any age group, at all times.

(5) Supervision.

(a) Direct supervision means watching and

directing children's activities within the

same room or designated outdoor play area,

and responding to the needs of each child.

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.

When caring for school - age children, child

care perso nnel shall remain responsible for

the supervision of the children in c are,

shall be capable of responding to

emergencies, and are accountable for

children at all times, including when

children are separated from their groups.

(b) During nap time, superv ision requires

that staff be in close proximity, within

sight and hearing of all the children. All

other staff required to meet the staff - to -

child ratio shall be within the same

building on the same floor, and must be

readily accessible and available to b e

summoned to ensure the safety of the

children. Nap time supervision, as

described in this section, does not include

supervision of children up to 24 months of

age, who must be directly supervised at all

times.

* * *

(d) Addit ional Supervision Requirements.

1. In addition to the number of staff

required to meet the staff - to - child ratio,

for the purpose of safety, one additional

adult must be present on all field trips

away from the child care facility to assist

in providing di rect supervision.

* * *

(6) Transportation. For the purpose of

this section, vehicles refer to those that

are owned, operated or regularly used b y the

child care facility and vehicles that

provide transportation through a contr act or

agreement with an outside entity. Parents'

personal vehicles used during field trips

are excluded from meeting the requirements

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

(c), F.A.C.

* * *

(d) The maximum number of individu als

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 federally approved child safety

restraint, unless the vehicle is excluded

from this requirement by Florida Statutes .

(f) When transporting children, staff - to -

child ratios must be maintained at all

times. The driver may be included in the

staff - to - child ratio. Prior to transp orting

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 being transported in the

v ehicle. 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 log 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 con ducted.

3. Upon arrival at the destination, a

second 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, verify ing that all children

were accounted for and that the log is

complete.

* * *

(8) Child Discipline.

* * *

(b) All child care personnel must comply

with the facility's written disciplinary

policy. Such p olicies shall include

standards that prohibit children from being

subjected to discipline which is severe,

humiliating, frightening, or associated with

food, rest, or toileting. Spanking or any

other form of physical punishment is

prohibited for all child care personnel.

* * *

(11) Child Safety.

(a) Acts or omissions that meet the

definition of child abuse or neglect

provided in Chapter 39, F.S., constitute a

violation of the standards in Sections 402 -

301 - 402.3 1 9 , F.S., and shall support

imposition of a sanction, as provided in

Section 402.310, F.S.

9 1 . The Department has the burden to prove by clear and

convincing evidence the grounds for revocation or denial of an

application to renew an existing daycare license. Coke v. Dep ' t

of Child . and Fam . Svc s . , 704 So. 2d 726 (Fla. 5 th DCA 1998);

Dep ' t of Banking & Fin . v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996).

9 2 . For proof to be considered "' clear and convincing '

. . . the evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such weight that it p roduces in the mind of the trier

of fact a firm belief or conviction, without hesitancy, as to

the truth of the allegations sought to be established.Ñ In re

Davey , 645 So. 2d 398, 404 (Fla. 1994).

9 3 . The Department met its burden in proving that

Respond ent violated Florida Administrative Code Rule 65C -

22.001(5), in that on July 22, 2010, ECCC staff left a seven -

year - old child with a disability , W.G., behind on a field trip

to Duval Elementary. This constitutes a Class I violation for

which a fine of not less than $100 nor more than $500 per day

for each violation may be imposed pursuant to Florida

Administrative Code Rule 65C - 22.010. Because of the seriousness

of the violation, a $500 fine is appropriate.

9 4 . The Department did not meet its burden in proving that

on July 22, 2010, Respondent transported 18 individuals in a van

with a maximum capacity of 15 passengers.

9 5 . The Department d id meet its burden that on July 30,

2010, Respondent left W.G. alone in a classroom using a

computer, albeit briefly. W.G. is a child with a disability and

staff must be sufficient to cover staffing contingencies, even

for brief periods of time.

9 6 . As this was a third class II violation within a two -

year period, the Department may impose $50 for the second

vio lation and $60 for the third violation, pursuant to Florida

Administrative Code Rule 65C - 22.010(2)(e).

9 7 . The Department did not meet its burden in proving two

alleged violations of rule 65C - 22.001(11)(a), regarding child

safety (allegations of deliberat e administration of medicines by

staff ) . The testimony in this regard was not credible as to one

witness and was not distinctly remembered, precise, or lacking

in confusion as to others. The evidence in this regard was not

of such weight that it resulted in a firm belief, without

hesitancy, as to the truth of the allegations asserted.

9 8 . The Department did not me e t its burden in proving a

violation of rule 65C - 22.001(8)(b), regarding inappropriate

discipline (hosing down a child outside , shutting the child in a

bathroom for extended periods of time, and directing staff not

to change the child ). Upon consideration of the evidence

presented, including the credibility and demeanor of the

witnesses, the testimony in this regard was not of such weight

that it produced a firm belief, without hesitancy, as to the

truth of the allegations asserted.

99 . A s to the multiple allegations in paragraph 17 of the

Second Administrative Complaint, the Department met its burden

regarding the allegations that occ urred on September 1, 2010 and

August 10, 2010; but did not meet its burden regarding the

alleged violation that occurred on March 24, 2010 , or the

general allegation concerning the time period of March through

June 2010 (regarding repeatedly leaving infants unsup ervised).

As these are second and third Class II violations, the

Department may impose fines of $50 and $60 pursuant to rule 66C -

22.010(2)(e).

10 0 . The Department did not meet its burden in proving the

allegations in paragraph 18 regarding Respondent's o wner and

director routinely directing employees to mix age groups in an

effort to meet staff - to - child ratios, and to supervise more

children than allowed by statute and rule.

10 1 . The Department did not meet its burden of proving

that Respondent paid an 11 - year - old girl $10 per week for two or

three weeks to watch infants in the infant room by herself.

10 2 . Section 435.02(2)(rr) provides that no person subject

to level 2 screening requirements can have been found guilty of,

regardless of adjudication, or entered a plea of nolo contendere

or guilty to, an offense prohibited under chapter 893, relating

to drug abuse prevention and control, if the offense was a

felony. Mr. Wright's 1995 plea of nolo contender e to possession

of cocaine constitutes a disqua lifying offense.

10 3 . However, the Department failed to meet its burden of

proving that Respondent's owner and director repeatedly allowed

her fiancé, Mr. Wright, to transport children to and from the

facility with no other child care personnel present.

10 4 . Section 435.02(2)(hh) provides that no person subject

to level 2 screening requirements can have been found guilty of,

regardless of adjudication, or entered a plea of nolo contendere

or guilty to, an offense prohibited under s ection 827.03,

Florida Statutes, relating to child abuse. Ms. Latson's 2007

plea of nolo contendere to an offense under that statute dealing

with child abuse constitutes a disqualifying offense.

10 5 . However, the Department f a iled to prove the

allegation in paragraph 25 that Respondent 's owner and director

hired Ms. Latson knowing that Ms. Latson had a disqualifying

offense.

10 6 . The Department has not met i ts burden regarding the

allegation in paragraph 26 that Respondent's owner and director

knowingly falsified training records for employees constituting

a failure to complete training requirements.

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 placin g the license on probation for the length of

time the facility has been closed due to the Emergency

Suspension Order; imposing fines in the amount of $740;

requiring Respondent to attend further training regarding the

requirements of s ection 402.305(4) and Florida Administrative

Code Rule 65C - 20.00 1 ( 4 ) ; and requiring successful completion of

such training prior to reopening the child care facility .

DONE AND ENTERED this 25 th day of Ju ly , 20 11 , in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 25 th day of Ju ly , 20 11 .

ENDNOTE S

1/ This Recommended Order will address the allegations in the

order that they appear in the Second Amended Administrative

Complaint.

2/ There was a period of time in the spring of 2010 in which

Ms. Frewoini was absent from work due to her husband's illness.

3 / It is noted that with the exception of Ms. Cruz - Gil, the

rebuttal witnesses were not previously disclosed, and their

testimony concerned the heart of the Departmen t's case - in - chief

regarding t h i s allegation . Any testimony offered on rebuttal

which is cumulative of evidence introduced during the case in

chief has not been considered except for impeachment purposes.

4 / There was considerable testimony as t o whether and when

Mr. Wright was at ECCC during operating hours. However, the

charge in the Second Amended Adminis trative Complaint regarding

Mr. Wright deals exclusively with transportation of children.

Therefore, t his order will be limited to that issue in regards

to Mr. Wright.

5/ It is impossible to believe that all of these things

happened on such a frequent basis, when employees and volunteer

consistently testified that these things never happened, were

not the policy of ECCC, and were never witnes sed by any of them

on any occasion over several years. Accordingly, as it is

impossible to determine any truth from untruth or exaggeration,

Ms. Holmes' testimony is deemed to be not credible.

COPIES FURNISHED:

Lucy Goddard - Teel , Esq uire

Department of Children

and Family Services

Post Office Box 390, Mail Sort 3

Gainesville , Florida 3 2602 - 0390

Matthew Wells, Esquire

206 Mason Street

Brandon, Florida 33511

J. D. Packwood, Jr., Esquire

Post Office Box 140504

Gainesville, Florida 32614

Gregory Venz , Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Drew Parker , General Counsel

Department of Children

and Fam ily Services

Building 2, Room 20 1

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

David Wilkins , Secretary

Department of Children

and Family Services

Building 1, Room 202

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.