13-002798 Department Of Children And Families vs. Mini Miracles Children's World Daycare Center Status: Closed Recommended Order on Tuesday, February 4, 2014.

Summary: Child care facility license revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN

AND FAMILIES ,

Petitioner ,

vs. Case Nos. 13 - 2051

13 - 2798

MINI MIRACLES CHILDREN ' S

WORLD DAYCARE CENTER ,

Respondent .

/

RECOMMENDED ORDER

On October 22, 2013, a formal administrative hearing for

these cases was held by video teleconference in Lakeland and

Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cheryl Dianne Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830 - 7646

For Respondent: Arthur C. Fulmer, Esquire

Fulmer and Fulmer, P.A.

1 960 East Edgewood Drive

Lakeland, Florida 338 0 3 - 3471

STATEMENT OF THE ISSUE S

The issue presented in DOAH Case No. 13 - 2051 is whether the

allegations of the Administrative Complaint filed by the

Department of Children and Famil ies (Petitioner) again st Wanda

Williams , owner and operator of Mini Miracles Children's World

Daycare Center (Respondent) , are correct, and , if so, what

penalty should be imposed.

The issue presented in DOAH Case No. 13 - 2798 is whether the

Petitioner should approve the Respon dent ' s application to renew

the license to operate a child care facility.

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 21, 2013, the

Petitioner notified the Respondent that the Petitioner intended

to impose an administrative fine and re voke the Respondent ' s

license to operate a child care facility based on the allegations

set forth therein. The Respondent disputed the allegations and

requested a formal hearing. The Petitioner forwarded the request

for hearing to the Division of Adminis trative Hearings, where it

was designated DOAH Case No. 13 - 2051, and a hearing was

scheduled.

By an Administrative Complaint dated June 27, 2013, the

Petitioner notified the Respondent that because of the alleged

violations set forth therein, the Petitio ner intended to impose

an administrative fine and deny the Respondent ' s application to

renew the child care facility license at issue in this

proceeding. The Respondent disputed the allegations and

requested a formal hearing. The Petitioner forwarded the request

for hearing to the Division of Administrative Hearings, where it

was designated DOAH Case No. 13 - 2798.

On August 15, 2013, the cases were consolidated based on the

request of the parties. The hearing was scheduled to commence on

September 23, 20 13, and then , at the request of the parties , was

continued to October 22, 2013.

At the hearing, the Petitioner presented the testimony of

seven witnesses and had exhibits B, D, E, I, K, N, O, and

S through U admitted into evidence. The Respondent testif ied on

her own behalf.

The T ranscript of the hearing was filed on December 4, 2013.

On December 6, 2013, the parties filed a Joint Stipulation to

Request Extension of Time seeking to establish a deadline of

December 27, 2013 , for filing proposed recomme nded orders. The

request w as granted in an O rder dated December 10, 2013. On

December 27, 2013, the Respondent filed a proposed recommended

order that has been considered in the preparation of this O rder.

The Petitioner has not filed a proposed recommen ded order.

FINDING S OF FACT

1. At all times material to these ca ses, Wanda Will i ams

operated Mini Miracles Children ' s World Daycare Center located at

1712 West Chase Street, in Lakeland, Florida, under Florida

license no. C10PO0769. At the time of the he aring, the status of

the license was " provisional. "

DOAH CASE NO. 13 - 2051

Improper T ransportation of C hildren

2. The Administrative Complaint filed in DOAH Case

No. 13 - 2051 alleges that the Respondent has transported children

attending the child care fa cility in an unsafe manner and in

violation of a written commitment from the Respondent to refrain

from providing transportation under the license.

3. Section 402.305(10), Florida Statutes (2012), and

Florida Administrative Code Rule 65C - 22.001(6)(d) li mit the

number of individuals being transported in a vehicle on behalf of

a child care facility to the number of seat belts present in the

transportation vehicle.

4. The Respondent was previously cited for such

transportation issues in an Administrative Complaint dated

October 21, 2011, related to the Respondent ' s operation of

another licensed child care facility. The Respondent did not

contest the allegations and paid an administrative fine. The

Respondent also executed a written commitment dated June 27,

2012, wherein she committed to refrain from providing

transportation to children attending the facility.

5. Based on the previous litigation, the Respondent was

aware that transporting children in a number exceeding the

appropriate capacity of a ve hicle based on the number of seat

belts or child safety restraints in the vehicle was not

acceptable. Nonetheless, on more than one occasion while

operating the child care facility under the license at issue in

this proceeding, the Respondent transported children in an unsafe

manner, or directed an employee to transport children in an

unsafe manner, by placing more than one child into a seat belt

and exceeding the seating capacity of vehicles.

6. An employee of the Respondent who worked at the facility

testified at the hearing that Ms. Williams had directed her to

transport more children than were seat - belted positions in a

vehicle by placing more than one child into a single seat belt.

Although the employee knew the practice was unsafe, she complied

wi th the Respondent ' s direction. Her testimony has been fully

credited.

7. During the Petitioner ' s investigation of the

transportation issue, the Respondent initially denied the

allegation, but subsequently acknowledged that children had been

transported in the manner described.

Failure to Employ a Credentialed Director

8. Section 402.305(3) and r ule 65C - 22.003(8) require that a

licensed child care facility employ an appropriately credentialed

director.

9. During an inspection conducted by the Petit ioner on

August 29, 2012, the Respondent was operating without having a

credentialed director. Although the Respondent suggested a

credentialed director had been employed until the day prior to

the inspection, the evidence failed to support the assertion.

10. Although the Respondent asserted that attempts were

made to employ a credentialed director, the evidence established

that the Respondent failed to employ a credentialed director and

routinely operated without a credentialed director.

Failure to Ma intain Screening Documentation

11. Section 402.305(2)(a) and r ule 65C - 22.006(4)(d) require

that the staff of a child care facility be subjected to " Level 2 "

background screening prior to employment and that the facility

retain documentation that such scree ning has occurred.

12. During an inspection on October 9, 2012, the Respondent

was unable to document that one of the staff member s had passed

the appropriate background screening process. During an

inspection on October 22, 2012, the Respondent was sti ll unable

to document that the staff member had passed the appropriate

background screening process.

DOAH CASE NO. 13 - 2798

Failure to Maintain Documentation of Staff Training

13. Section 402.305(2)(d) and r ule 65C - 22.003(2)(a)1.

require that all child c are personnel must complete a specified

introductory training course within 90 days of commencing

employment at a child care facility and that the Respondent

retain documentation that such training has occurred.

14. During an inspection on October 22, 20 12, the

Respondent was unable to document that two of the staff members

had completed the required training. During inspections on

April 23 and June 12, 2013, the Respondent was still unable to

document that staff members had completed the training.

Fai lure to Maintain Screening Documentation

15. As stated previously, the staff of a child care

facility is required to undergo " Level 2 " background screening

prior to employment, and the facility is required to retain

documentation that such screening has oc curred.

16. During inspections on April 23 , May 21, and June 12,

2013, the Respondent was unable to document that all staff

members involved in providing child care had passed the

appropriate background screening process, a deficiency that had

existed si nce inspections conducted in October 2012.

Failure to Comply With Staffing Ratios

17. Section 402.305(4) and r ule 65C - 22.001(4) establish

minimal child care facility staffing requirements based on the

number and age of children who are attending a chil d care

facility.

18. During inspections on May 21 and June 12, 2013, the

Respondent did not have sufficient staff present to meet the

requirements based on the number and age of children present at

the facility during the inspection. This deficiency had been

identified during an inspection on August 29, 2012.

Child Sleeping in "Bouncer Seat"

19. Rule 65C - 22.002(5) establishes specific requirements

related to the equipment that must be provided by a child care

facility to permit children to nap or sleep. The rule requires

that children up to one year of age be placed in individual

cribs, portacribs, or sided - playpens.

20. During an inspection conducted on May 21, 2013, an

infant was observed sleeping in a " bouncer " seat, contrary to the

specific provisi ons of the rule. This deficiency had been

identified during an inspection on October 9, 2012.

Failure to Post Menus

21. Rule 65C - 22.005 establishes specific requirements

related to the provision of food by a child care facility. Such

requirements state t hat at the beginning of each week, a child

care facility must post menus of meals and snacks available to

the children during the week.

22. During inspections on June 12 and June 14, 2013, the

required menus were not posted by the Respondent. This

defic iency was identified during two inspections conducted in

October 2012.

Providing Fraudulent Information to DCF

23. The Administrative Complaint alleged that the

Respondent twice provided fraudulent information to the

Petitioner related to the identificatio n of the credentialed

facility director. The allegation was not supported by competent

evidence.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

25. In DOAH Case No. 13 - 2051, the Petitioner has the burden

of proving, by clear and convincing evidence, the allegations set

forth in the Administrative Complaint against the Respondent. In

DOAH Case No. 13 - 2798, the Petitioner has the burden of

establishing that sufficient cause is present to deny the license

renewal applications filed by the Respondent. Dep ' t of Banking

and Fin . v. Osborne Stern & Co ., 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Coke v. Dep ' t

of Child . & Fam . S e rvs . , 704 So. 2d 726 ( Fla. 5th DCA 1998).

26. The Petitioner has met the burden in both cases. The

continuing violations of statutes and rules set forth herein are

sufficient to warrant revocation of the Respondent ' s license an d

denial of the renewal application.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Respondent enter a f inal o rder

revoking the license at issue in this proceeding and denying the

Petitioner ' s ap plication to renew the referenced license.

DONE AND ENTERED this 4th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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

this 4th day of February , 2014 .

COPIES FURNISHED:

Esth er Jacobo, Interim 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 Boule vard

Tallahassee, Florida 32399 - 0700

Gregory D. Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Cheryl Dianne Westmoreland, Esquire

Department of Children and Familie s

1055 U.S. Highway 17 North

Bartow, Florida 33830 - 7646

Arthur C. Fulmer, Esquire

Fulmer and Fulmer, P.A.

1960 East Edgewood Drive

Lakeland, Florida 338 0 3 - 3471

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.