12-001059 Department Of Children And Families vs. Jumpstart Enrichment Program, Inc. Status: Closed Recommended Order on Monday, September 17, 2012.

Summary: DCF proved fourth staff-to-children ratio violation, and defenses had no merit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1059

)

JUMPSTART ENRICHMENT PROGRAM, )

INC. , )

)

Respondent . )

)

RECOMMEN DED ORDER

On August 17, 2012, a disputed - fact administrative hearing

was held in this case by video teleconference in Tallahassee and

Orlando, Florida, before J. Lawrence Johnston, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPE ARANCES

For Petitioner: Stefanie C. Beach, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

For Responde nt: Jack P. Caolo, Esquire

131 East Woodland Drive

Sanford, Florida 32773

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Department of

Children and Families (Department), should impose a $75 fine on

Respondent, Jumpstart Enrichment Program, Inc. (Jumpstart), and

place it on probation for up to six months for not complying with

child care facility staff - to - children ratio requirements for the

fourth time.

PRELIMINARY STATEMENT

On February 13 , 2012, the Department filed an Administrative

Complaint charging ratio violations at Jumpstart. Respondent

timely disputed the facts, raised affirmative defenses, and

requested a hearing. The Department referred the matter to DOAH,

and it was scheduled for a final hearing.

At the final hearing on August 17, 2012, the Department

called David Meconitas (a child care facility inspection

supervisor employed by the Department), Shawnda Bernard and

Sabrina Hayles (staff employed by Respondent), and Michael

Col lins (owner and director of Respondent) as witnesses and had

Petitioner ' s Exhibits A through G admitted in evidence.

Respondent called another of its employees, Conswela Green,

re - called the Department ' s witnesses, and had Respondent ' s

Exhibits 1 throug h 6 admitted in evidence.

No transcript of the final hearing was prepared. The

parties ' proposed recommended orders have been considered.

FINDING S OF FACT

1. The Department has issued Respondent license C09OR0629

to operate a child care facility in Orlando under sections

402.301 through 402.319, Florida Statutes, and Florida

Administrative Code Chapter 65C - 22.

2. The statute s and rules have minimum staff - to - children

ratio requirements that are clear, but not uncomplicated, and not

always easy to implement. It is necessary to have one staff

person for every four children from birth to age one, for every

six aged one to two, for every ten aged two to three, for every

15 aged three to four, for every 20 aged four to five, and for

every 25 aged five or older. Generally, the ratio requirement

for a mixed group of children aged two or older is dictated by

the age group with the largest number of children in the group.

However, if children under the age of two are present, the ratio

requirement for a group is di ctated by the age of the youngest

child. It was undisputed that staff - to - children ratio

requirements are Class II standards under the Department ' s rules.

Citation Issued January 6, 2012

3. The Administrative Complaint alleges that a citation for

insuffic ient staff was issued to Respondent during a Department

inspection on January 6, 2012. It alleges that this was the

fourth violation of the standard, justifying a $75 fine and

probation for up to six months conditioned on being subject to

unannounced visi ts to ensure compliance with all statutes and

codes and on ensuring the maintenance of approp riate staff - to -

children ratio.

4. On January 4, 2012, Sabrina Hayles and Conswela Green

were the staff on duty at Jumpstart. E ight children were present

that mor ning when Ms. Hayles left the facility to go to lunch.

She took two of the children with her so that Ms. Green would

meet ratio requirements for the remaining six. While Ms. Hayles

was gone, a grandmother dropped off another child, which put the

facility out - of - compliance with staffing ratio requirements.

Ms. Green asked the grandmother to stay until Ms. Hayles

returned, but she said she had an appointment and could not stay.

Ms. Green accepted the child into the facility and telephoned

Ms. Hayles to tel l her to return to the facility because they

were out - of - compliance. Ms. Hayles, who already was on her way

back, arrived several minutes later. The facility ' s being out -

of - compliance was observed by staff from the Early Learning

Coalition of Orange Coun ty (ELCOC), who happened to drop some

paperwork off at the facility at that time. ELCOC reported the

ratio violation to the Department, which investigated the

allegation on January 6 and issued a citation.

5. The Administrative Complaint alleges that thi s was

Respondent ' s fourth insufficient staff violation and that the

previous violations were on September 9 and April 14, 2011, and

on August 20, 2010.

Alleged Violation on September 9, 2011

6. There was no evidence of a staffing ratio violation on

Sep tember 9, 2011. Actually, there was a staffing violation on

September 7, 2011. One staff was caring for an infant and five

toddlers; two staff were required. ELCOC reported the violation

to the Department. When apprised of the violation, Michael

Collin s, the owner and director of the facility, took immediate

action to increase staffing and bring the violation to an end as

soon as possible. The Department investigated on September 9,

2011, verified the violation through interviews with Shawnda

Bernard, and cited Respondent for the v iolation on September 9,

2011.

Alleged Violation on April 14, 2011

7. Another entity involved in child care and school

readiness, referred to in the hearing as Devoreaux, reported to

the Department on April 12, 2011, that the re was one staff caring

for 13 children, when two staff were required. The Department

investigated on April 14, 2011, determined from interviews with

staff that the violation had in fact occurred , and cited

Respondent for the violation.

8. There was hear say evidence of another staffing violation

after the Department ' s inspection on April 14, 2012. The second

alleged violation was not proven by any direct evidence or by any

hearsay evidence that would be admissible over objection in a

civil action. See § 120.57(1)(c), F la. Stat.

Alleged Violation on August 20, 2010

9. On August 20, 2010, the Department conducted a routine

inspection and cited Respondent for having six children at its

facility and no staff, just the owner/director, Mr. Collins. Two

quali fied staff were required for the six children. There was an

unscreened volunteer there, who would have counted and made the

staffing ratio sufficient prior to August 1, 2010, when the law

changed to require staff to be screened.

First Affirmative Defens e

10. In May 2011, the Department filed an Administrative

Complaint against Respondent charging staffing ratio violations

on August 20, 2010, and on August 6 and December 28, 2009, plus

numerous other kinds of violations, including some on August 20,

2010 .

11. In October 2011, the Department and Respondent settled

the charges in that Administrative Complaint by payment of a

$500 fine (reduced from $2,205) and a reduced period of

probation, through August 15, 2011. The alleged facts and

charges were not a dmitted as part of the settlement.

12. The settlement included a provision that the Department

would " make no further orders and will take no further action on

the Administrative Complaint and underlying violations in

connection with this proceeding that is being settled. " It also

including a provision in the next numbered paragraph saying:

However, if in the future, the Petitioner

should have to take administrative action

against the Respondent, the Respondent agrees

that the Petitioner shall not be es topped

from using the facts set forth in the

Administrative Complaint in this case as

additional basis ' [sic] for any future

denials, revocations or other administrative

actions, taken against the Respondent by the

Petitioner resulting from any future non -

compliances with applicable statute, code or

agreements, by the Respondent.

Since one of the " facts set forth " in the settled Administrative

Complaint was that Respondent had insufficient staffing on

August 20, 2010, the Department was not estopped from using those

facts as it does in this case -- i.e., as one of the three staffing

violations that preceded the one in January of 2012.

Second Affirmative Defense

13. Because of the insufficient staffing on January 4,

2012, ELCOC withheld payment for that d ay under the federal

school readiness program it administers, which requires qualified

staff to be present.

CONCLUSIONS OF LAW

1 4. In accordance with sections 402.301 through 402.319,

Florida Statutes (2011), the Department has established

a licensing pro gram for child care facilities such as

Jumpstart. Minimum staff - to - children ratios are set out in

section 402.305(4) and in rule 65C - 22.001(4)(Revised Jan. 13,

2010).

15. Under section 402.310(1)(a), the Department may fine a

licensee, place a licensee o n probation, or suspend or revoke a

license for violating the statutes and rules governing the

licensee. In determining the appropriate disciplinary action for

a violation, three factors are considered: " The severity of the

violation, including the proba bility 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 " ; " [a] ctions taken by the li censee . . . to correct the

violation or to remedy complaints " ; and " [a] ny previous

violations of the licensee. . . . " § 402.310(1)(b), Fla. Stat.

The Department is required to adopt rules to establish grounds

for discipline and uniform procedures for im posing discipline.

§ 402.310(1)(c), Fla. Stat.

16. Under r ule 65C - 22.010(d)(Revised Jan. 13, 2010), there

are three classes of licensing violations. The second or

subsequent incident of noncompliance with an individual Class II

standard results in a Cla ss II violation. Fla. Admin. Code

R. 65C - 22.010(d)2. (The licensing standards are described on CF -

FSP Form 5316, March 2009, which can be obtained from the

Department ' s website. Fla. Admi n. Code R. 65C - 22.010(1)(d)1.)

17. The disciplinary sanctions for Class II violations are

set out in rule 65C - 22.010(e)2. " 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 standar d occur. The

violation will be classified as ' Technical Support. '" Id. at

subpar. a. " 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 violati on, and

subsequent violations, of the same standard within a two year

period will be classified as ' Class II. '" Id. at subpar. b.

" For the third violation of the same Class II standard, the

department shall issue an administrative complaint imposing a

fi ne of $60 per day for each violation. " Id. at subpar. c. " 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 mon ths, and the department shall also issue an administrative

complaint imposing an additional fine of $75 per day for each

violation. " Id. at subpar. d.

18. Because it seeks to impose license discipline, the

Department has the burden to prove its allegatio ns by clear and

convincing evidence. See In re Davey , 645 So. 2d 398, 405 (Fla.

1994); Dep ' t of Banking & Fin . v. Osborne Stern & Co., Inc. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

19. Two of the three prior violatio ns alleged in the

Administrative Complaint (the violations alleged on April 14 and

September 9, 2011) actually occurred on the days citations were

issued for violations that occurred two days earlier (April 12

and September 7, 2011). That distinction has no legal

significance. The charges were specific, and Respondent was not

confused or prejudiced by the wording of the Administrative

Complaint. Contrast Trevisani v. Dep ' t of Health , 908 So. 2d

1108 (Fla . 1st DCA 2005); Aldrete v. Dep ' t of Health, Bd. of

Med. , 879 So. 2d 1244 (Fla. 1st DCA 2004); Ghani v. Dep ' t of

Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep ' t of

Prof ' l Reg., Bd. of Med. , 563 So. 2d 805 (Fla. 1st DCA 1990). As

to most recent violation charged in the Administrative Complain t,

the allegation was that a citation was issued during the

Department ' s inspection on January 6, 2012, not that the

vio lation occurred on that date.

20. The evidence proved non - compliance with staffing ratio

requirements on August 20, 2010, on April 12 a nd September 7,

2011, and on January 4, 2012. Under rule 65C - 22.010(e)2., the

last three violations of the standard were Class II violations.

Under subparagraph d. of that rule, the Department " shall also

issue an administrative complaint imposing an add itional fine of

$75 per day for each violation. " The Department construes that

statute to support a fine of $75 in this case (in addition to

probation status for a period not to exceed six months ).

21. Respondent did not prove its affirmative defenses. The

settlement agreement specifically allowed the Department to use

the facts set forth in the settled Administrative Complaint,

including the alleged insufficient staffing on August 20, 2010,

as one of the three staffing violations that preceded the one i n

January of 2012. ELCOC ' s withholding payment of federal funds

under the school readiness program for not having required

qualified staff does not preclude the Department from enforcing

sections 402.301 through 402.319 and chapter 65C - 22.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Children and Families

enter a final order: finding Respondent guilty as charged;

fining Respondent $75; and placing Respondent on probation for

six months , with unannounced visits to ensure compliance with all

statutes and codes, including the maintenance of appropriate

staff - to - children ratio.

DONE AND ENTERED this 17th day of September , 2012 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

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 C lerk of the

Division of Administrative Hearings

this 17th day of September , 2012 .

COPIES FURNISHED:

Stefanie C. Beach, Esquire

Department of Children and Families

Suite S - 1129

400 West Robinson Street

Orlando, Florida 32801 - 1782

Jack P. Caolo, Esquire

131 East Woodland Drive

Sanford, Florida 32773

Gregory Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

David Wilkins, Secretary

Department of Children and

Families

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.