13-001622 Department Of Children And Families vs. Oak Grove Church Daycare Status: Closed Recommended Order on Thursday, August 15, 2013.

Summary: Respondent failed to have at least one staff member present with a current and valid certificate in infant/child CPR and first aid training. Recommend $100 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner ,

vs. Case No. 13 - 1622

OAK GROVE CHURCH DAYCARE ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notic e, a formal hearing was held in this case

on July 15, 2013, in Port St. Joe, Florida, before Barbara J.

Staros, an administrative law judge assigned by the Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Paul A. Rowell, Esquire

Depart ment of Children and Families

2383 Phillips Road

Tallahassee, Florida 323 08

For Respond ent: James E. Wiley, pro se

Oak Grove Church Daycare, Inc.

Post Office Box 967

Port St. Joe, Florida 32457

STATEMENT OF THE ISSUE

The issue in t his proceeding is whether Respondent

committed the violations as alleged in the Administrative

Complaint and, if so, wha t is the appropriate penalty.

PRELIMINARY STATEMENT

On April 3, 2013, the Department of Children and Families

(Department) issued an Ad ministrative Complaint to Respondent,

Oak Grove Church Daycare (Oak Grove) , seeking to impose an

administrative fine for alleged violations of Florida

Administrative Code Rule 65C - 22.004(2) and (4), for failure to

have at least one staff member present at all times with a

current and valid certification in f irst a id and for failure to

have at least one staff member present at all times with a

curr ent and valid certification in infant/c hild cardiopulmonary

resuscitation (CPR). Oak Grove disputed the allegat ions 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 May 1, 2013.

A Notice of Hearing was issued on May 15, 2013 , schedulin g the

final hearing for July 19, 2013. The Department filed a

Consented Motion for Continuance based upon the unavailability

of a witness. The Consented M otion for Continuance was granted

and the case was rescheduled for July 15, 2013. T he case was

hear d as scheduled.

At hearing, the Department presented the testimony of one

witness, Yvonne Goss. The Department's Exhibits numbered 1

through 6 were admitted into evidence. Respondent presented the

testimony of one witness, Kristy Raffield. Respondent's

Exhibits numbered 1 through 3 were admitted into evidence.

The hearing was not transcribed. Petitioner filed a

Proposed Recommended Order, which has been considered in the

preparation of this Recommended Order. Respondent did not file

a pos t - hearing written submission.

All references to statutes are to Florida Statutes (2012)

unless otherwise noted.

FINDINGS OF FACT

1. Respondent is licensed by th e Department to operate a

child - care facility located in Port St. Joe, Florida.

2. James Wiley is the p resident/CEO of Oak Grove.

3. Yvonne Goss is a child licensing counselor for the

Department. S he is assigned to regularly inspect Oak Grove and

other facilities .

4. The Administrative Complaint charged Respondent with

being out of compliance with t he first a id CPR requirements in

violation of Florida Administrat ive Code Rule 65C - 22.2004(2).

Specifically, the complaint alleges as follows:

On the chi ld care inspections dated

March 14, 2013 and November 13, 2012, your

facility was out of compliance i n that the

facility did not have at least one staff

member present at all times with a current

and valid certification in First Aid (Class

II violation). A fine of $50.00 is imposed.

5. On November 13, 2012, Ms. Goss conducted a regular

inspection of O ak Grove. As part of her i nspection, Ms. Goss

inspected the files of the facility to determine whether it was

in compliance with the governing statutes and rules.

6. After revi ewing the facilityÓs files, Ms. Goss

determined that no staff member on premis es during the

inspection had a curr ent and valid certification in first a id.

In addition to reviewing the files, Ms. Goss inquired of staff

members who were on the premises during the inspection whether

they had current and valid certification in first ai d. She

received negative responses from the staff who were present.

7. The Administrative Complaint further charged Respondent

with the following:

On the chi ld care inspections dated

March 14, 2013 and November 13, 2012, your

facility was out of complia nce in that the

facility did not have at least one staff

member present at all times with a current

and valid certification in Infant/Child

cardiopulmonary resuscitation (CPR) (Class

II violation). A fine of $50.00 is imposed .

8. During the November 13, 2012 , inspection, Ms. GossÓ

review of the facilityÓs file s revealed that no staff member on

premises during the inspection had current and valid

certif ication in infa nt/ child CPR.

9. Ms. Goss also inquired of Oak Grove staff members who

were present whet her any of them had current and valid

certification in infant/child CPR. She received neg ative

responses from the staff.

10. Ms. Goss then issued an Administrative Warning to

Respondent , which set forth the rule requirements regarding

first aid and CPR a nd which found that Respondent was not in

compliance with r ule 65C - 22.004(2)(a) and (b).

11. Kristy Raffield is an administrative assistant at

RespondentÓs facility. When questioned by Ms. Goss as to

whether she had on file documentation showing the requ ired

certifications, she answered no. Following Ms. GossÓ inspection

visit, Ms. Raffield went on - line and completed the requirements

for adult, child, and i nfant CPR, and has a card reflecting that

she completed the requirements on November 13, 2012, the date of

th e first inspection.

12. On March 14, 2013, Ms. Goss conducted another regular

inspection of Oak Grove. She again reviewed the facilityÓs

files to determine whether it was in compliance with the

governing statutes and rules. Based upon her revi ew of the

files, she determined that no staff member on premises during

the inspection had curr ent and valid certification in infant and

child CPR.

13. She also inquired of staff members who were present as

to whether any of them had current and valid cer tification in

infant and child CPR. The staff present responded to her in the

negative.

14. Based on the same file review, Ms. Goss determined

that no staff member on premises during the inspection had

current and valid certification in first aid. She inquired of

staff members who were present if they had such certification

and t hey responded in the negative.

15. Based upon these findings, Ms. Goss issued a Notice of

Adminis trative Action to Respondent.

16. According to Ms. Raffield, one staff member who had

the appropriate certifications on file was out sick on March 14,

2013, because she had strep throat.

17. A staff member, Debbie Croft, went on - line and

received certification that day (March 14, 2013). Her card

reflecting completion of the first aid r equirements is in

evidence.

18. Ms. Raffield acknowledged that while there were

employees who possessed the required certifications, there were

no employees who possessed these certifications on premises at

the times of the inspections.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2013). This proceeding is

de novo. § 120.57(1)(k), Fla. Stat.

20. The Department is the agency ch arged with the

re sponsibility of licensing child - care facilities in the S tate

of Florida. § 402.301 - 402.319, Fla. Stat.

21. Section 402.310 authorizes the Department to take

adverse action r egarding the license of a child - care facility

for violations o f the above - referenced statutes or the rules

adopted thereunder, including the imposition of fines.

22. Florida Administrative Code Rule 65C - 22.010 reads in

pertinent part as follows:

(1) Definitions

* * *

(d) ÒViolationÓ means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

* * *

2. ÒClass II ViolationÓ is the second or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF - FSP Form 5316. Class II v iolations are

less serious 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.

* * *

(2) Disciplinary Sanctions.

* * *

(e) Disciplinary san ctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

2. Class II violations

a. For the first violation of a Class II

standard, the department shall issue a

formal warning letter stating the

dep artmentÓs intent to take administrative

action if further violations of the standard

occur. The v iolation will be classified as

ÒTechnical Support.Ó

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

same standard within a two yea r period will

be classified as ÒClass II.Ó

23. Rule 65C - 22.004 reads in pertinent part as follows:

65C - 22.004 Health R elated Requirements

(2) First Aid, Cardiopulmonary

Resuscitation and Emergency Procedures.

(a) Each child care facility must have at

least one staff member with current and

valid certificate(s) of course completion

for first aid training and infant

car diopulmonary resuscitation (CPR)

procedures. One staff member satisfying

these training requirements shall be present

at all times that children are in care at

the facility, on field trips, and during all

transportation activities.

(b) Certificate(s) of course completion are

valid based on the time frames established

by each first aid and CPR training program,

not to exceed three years. . . .

Documentation that identifies staff members

who have met the first aid and infant and

child cardiopulmonary res uscitation (CPR)

training requirement shall be kept on file

at the child care facility.

24. The Department has the burden to prove by clear and

convincing evidence the grounds for discipline against

RespondentÓs license. Coke v. Dep't of Child. & Fam. S erv s. ,

704 So. 2d 726 (Fla. 5th DCA 1998); Dep't of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996).

25. The Department met its burden in proving that

Respondent violated r ule 65C - 22.004(2), in that on Novemb er 13,

2012, and again on Mar ch 14, 2013, Oak Grove did not have at

least one employee with current first aid certification or

current and valid infant/child CPR certification on premises.

While Respondent presented evidence that staff made the effort

to take and complete necessary c ourse requirements following the

inspections, the facilityÓs staffing must be sufficient to cover

staffing contingencies, even for brief periods of time. These

incidents con stitute class II violations.

26. As this was the second class II violation of the same

standards within a two - year period, the Department shall impose

an administrative fine of $50 for each second violation pursuant

to r ule 65C - 22.010(2)(e)2.

RECOMMENDATION

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

is

RECOMMENDED:

That the Department of Children and Famil ies enter a final

order imposing a total administrative fine of $100.

DONE AND ENTERED this 15 th day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative H earings

this 15 th day of August , 2013 .

COPIES FURNISHED :

Gregory D. Venz, Agency Clerk

Department of Children and Families

1317 Winewood Boulevard

Tallahassee, Florida 32399

James E. Wiley

Oak Grove Church Daycare, Inc.

Post Office Box 967

Port St. Jo e, Florida 32457

Paul A. Rowell, Esquire

Department of Children and Families

2383 Phillips Road

Tallahassee, Florida 32308

Michael Andrew Lee, Esquire

Department of Children and Families

2383 Phillips Road

Tallahassee, Florida 32308

Esther Jacobo, I nterim Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallaha ssee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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.