13-002393 Department Of Children And Families vs. Amanda's Childcare And Preschool Inc., D/B/A Amanda's Childcare And Preschool Status: Closed Recommended Order on Tuesday, October 15, 2013.

Summary: The Department failed to prove that Respondent violated child care licensing standards.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILI ES ,

Petitioner ,

Case No s . 13 - 2377

vs. 13 - 2393

AMANDAÓS CHILD CARE AND

PRESCHOOL INC., d/b/a , AMANDAÓS

CHILD CARE AND PRESCHOOL,

Respondent .

/

RECOMMENDED ORDER

A n administrative hearing was conducted in this case on

September 4, 2013 , in Deland , Florida, before James H. Peterson,

III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jane Almy - Loewinger , Esquire

Department of Children

and Famil ies

210 North Palmetto Avenue, Suite 447

Daytona Beach , Florida 32114

For Respondent: Joseph Corneck, pro se

AmandaÓs Child care and Preschool

123 West Rhode Island Avenue

Orange City, Florida 32763

STATEMENT OF THE ISSUE

W hether AmandaÓs Child care and Preschool is subject to a

civil penalty and licensure action for failing to comply with

staff - to - student ratios and for having tools on the daycare

playground, in violation of Florida Administrative Code Rule s

65C - 22.001(4) and 65C - 22.002(1)(a) , and chapter 402, Florida

Statutes .

PRELIMINARY STATEMENT

Following a routine inspection of AmandaÓ s Child care and

Preschool (Respondent) conducted on January 28, 2013, the

Department of Children and Famil ies ( Department ) issued an d

served an Administrative Complaint upon Respondent by certified

mail on February 13, 2013, seeking civil penalt ies against

Respondent . The Administrative Complaint alleged that

Respondent violated r ule 65C - 22. 001(4) by having only one staff

person for 21 children when one staff person for every 20

children is required , and also alleged that Respondent violated

r ule 65C - 22.002(1)( a) by having lumber and electrical cutting

tools within reach of children on a playground. The

Administrative Complaint ad vised Respondent that it had 21 days

from receipt within which to request a hearing.

Respondent, through its owner, Joseph Corneck , timely filed

a written request for a h earing on the Administrative Complaint .

T he Department referred the case to the Division of

Administrative Hearings (DOAH) , apparently twice, resulting in

assignment of two cases with two separate case numbe rs, DOAH

Case N umber 13 - 2377 and DOAH Case N umber 12 - 2393. Thereafter,

the two cases were consolidated by an o rder of c onsolidation

dated July 5, 2013.

At the administrative hearing in t his matter, the

Department presented the testimony of Department family services

counselor Kalyn Yeager and Department family counselor

supervisor , Jennifer Adams . The Department offered two exhibits

that were received into evidence as E xhibits P - 1 and P - 2 , with

the caveat that statements therein could not be relied up on for

the truth of matter s asserted unless corroborative of competent

e vidence. (Transcript, p. 76) . Mr. Corneck te stified on behalf

of Respondent, but did not offer any exhibits. The parties were

given 10 days from the filing of the transcript within which to

file proposed recommended orders. A one - volume T ranscript of

the proceedings was filed on September 13, 2013 . The Department

timely filed a Proposed Recommended O rder which has been taken

into consideration in preparing this Recommended Order.

Respondent did not file a proposed recommended order.

FINDINGS OF FACT

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

facility known as AmandaÓs Child care & Preschool located at 123

W est Rhode Island Avenue, Orange City, Florida 32763.

2. Respondent is owned by Joseph Corneck.

3. During the morning of January 28, 2013, Mr. Corneck was

working on the construction of a climbing apparatus in a

playground at RespondentÓs daycare facility .

4. There were no children playing on th e playground at the

time of Mr. Corneck Ós construction activities.

5. Rather, there were 20 kindergarten - aged children inside

an adjacent classroom while Mr. Corneck was outside working.

6. Near lunchtime, Ms. Carolyn, a staff member who was

supervising the classr oom , lined the children up so that they

could use the two available bathrooms and wash up for lunch.

7. Because of crowding by the number of children lining up

for only two bathrooms, Ms. Carolyn asked seven boys in the

group to line up outside the classroom along the exterior wall

near the door adjacent to the playground.

8. Ms. Caroly n asked Mr. Corneck to assist in watching the

boys while they were in line.

9. Mr. Corneck left the apparatus that he was working on,

which was approximately 30 fe et away, and came over to the boys

to watch over them while they were in the line.

10. Mr. Corneck left the tools that he was working with ,

consisting of a hammer and a cordless drill gun , back on a

platform of the app aratus. The platform where he left the tools

was approximately four to six feet high. He also left the

materials he was working with and a ladder near the apparatus.

11. While Mr. Corneck was watching the boys, Department

family services counselor Kalyn Yeager stopped by for a routine

in spection. She noticed the boys outside the classroom and

apparently concluded that they had access to the tools and

materials.

12. Mr. Corneck , however, did not allow the boys to play

on the playground that day . There is no evidence that the

children were allowed access to the tools or playground

apparatus, and there is insufficient evidence to suggest that

the children otherwise had access to those tools or materials,

or that they were ever in danger or potential danger because of

hi s construction act ivities.

13. After the inspection, Ms. Yea ger had a conversation

with Mr. Corneck in which he advised that he had shown some of

the day care students how to use tools. Mr. Corneck , however,

never told Ms. Yeager that he had given a demonstration to the

k indergarten - aged children who were present on the day of the

inspection . Rather, his reference to a tool demonstration was

about another occasion or occasion s whe n he had demonstrated the

use of tools to some of the older boys in RespondentÓs after -

school care.

14. At the final hearing, Ms. Yeager could not recall the

number of children who were there the day of her inspection .

The evidence is otherwise inadequate to show that Respondent

violated any applicable staff - to - child ratio standards.

15. In sum, the Department failed to prove the alleged

violations set forth in the Administrative Complaint .

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569 and 120.57(1 ) Fla. Stat . 1/

17. The Department, as t he party asserting the affirmative

in this proceeding, has the burden of proof. See , e.g. , Balino

v. DepÓt of Health & Rehab. Svc s . , 348 So. 2d 349 (Fla. 1st DCA

1977). Because the Department is seeking to prove violations of

a statute or rule and impose administrative fines or other

penalties , it has the burden to prove the allegations in the

complaint by clear and convincing evidence. Dep Ót of B anking &

Fin. , Div. of Sec s . & Investor Prot. v. Osborne S tern & Co. ,

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

(Fla. 1987).

18. As th e licensing authority for child care facilities,

the Department has the authority to investigate and take action

to enforce lice nsing standards for child care facilities found

in s ections 402.301 th rough 402.319, Florida Statutes, and in

rules developed by the Department pursuant the statutory

authority set forth in s ection 402.305 .

19. As a licensed child care f acility, Responden t is

subject to rules 65C - 22.001(4) and 65C - 22.002 . 2/

20. Rule 65C - 22.001(4), under which the staff ratio

allegation is based, provides:

(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 supervision of children, and applies

at all times while children are in care.

(b) Mixed Age Groups.

1. In groups of mixed age ranges, where

children under one year of age are included,

one staff member shall be responsible f or no

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 staff member shall

be responsible for no more than six children

of any age group, a t all times.

(c) For every 20 children, a facility must

have one credentialed staff member pursuant

to Section 402.305(3), F.S.

21. Rule 65C - 22.002(1)(a), cited by the Department in the

portion of the Administrative Complaint regarding tools and

materi als on the playground, provides:

Physical Environment.

(1) General Requirements.

(a) All facilities must be clean, in good

repair, free from health and safety hazards

and from vermin infestation.

22 . As noted in the Findings of Fact, above, the

Department did not prove by clear and convincing evidence facts

sufficient to show that Respondent violated r ule 65C - 22.001(4)

or 65C - 22.002(1)(a) as alleged in the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

RECOMMENDED that the Department of Children and Famil ies

enter a Final Order dismissing the Administrative Complaint.

DONE AND ENTERED 15th day of October , 20 13 , in Tallahassee,

Leon County, Florida.

S

JAMES H. PETERSON, III

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 Hearings

t his 15th day of October, 2013 .

ENDNOTE S

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2012 version.

2/ References to the Florida Administrative Code are to the

versions in effect on January 28, 201 3 .

COPIES FURNISHED :

Jane Almy - Loewinger, Esquire

Department of Children and Families

Suite 430

210 North Palmetto Avenue

Daytona Beach, Florida 32114

Joseph Corneck

AmandaÓs Childc are and Preschool

123 West Rhode Island Avenue

Orange City, Florida 32763

Gregory D. Venz, Agency Clerk

Department of Children and Families

1317 Winewood Boulevard

Tallahassee, Florida 32399

Marion Drew Parker, General Counsel

Department of Children an d Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Esther Jacobo, Interim 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.