14-005378 Department Of Children And Families vs. Chutes N' Ladders 2, Llc Status: Closed Recommended Order on Tuesday, February 24, 2015.

Summary: Licensed child care facility violated standards of ratio and supervision supporting administrative fine of $100.00.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 14 - 5378

CHUTES N' LADDERS 2, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 23, 20 15, the final hearing was held in this case

in Punta Gorda, Florida, before J.D. Parrish, Administrative Law

Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Eugenie G. Rehak , Esquire

D epartment of Children a nd Families

Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Phyllis Larkin, pro se

Chutes NÓ Ladders 2 , LLC

1961 Royalview Drive

Port Charlotte, Florida 3 3948

STATEMENT OF THE ISSUE

Whether the Department of Children and Families (DCF or

Petitioner) should impose sanctions against Respondent, Chutes NÓ

Ladders 2, LLC (Respondent), for alleged violations in the

operation of a child care center.

PRELIMINARY STATEMENT

On July 23, 2014, DCF issued an Administrative Complaint

against Respondent that alleged specific violations of licensing

standards pertinent to child care facilities. More specifically,

DCF alleged that Respondent had failed to comply with the ratio

standard for staff to children and had failed to provide

supervision within the standard. Petitioner seeks to impose an

administrative fine in the amount of $100.00 for the two

violations.

Upon receipt of the Administrative Complaint , Phyllis

Lar kin, as co - owner (with her husband, Michael Larkin), timely

filed a request for an administrative hearing and contested the

factual basis for the complaint. DCF forwarded the case to DOAH

for formal proceedings on November 14, 2014. Thereafter , the

case was scheduled for hearing in accordance with the partiesÓ

Joint Response to Initial Order.

At the hearing , DCF presented testimony from Jeanette

Witmer, a DCF licensing counselor. Phyllis and Michael Larkin

testified on behalf of Respondent. Petitioner Ós request for

official recognition of PetitionerÓs Exhibits 1 through 4

(provisions of rules relevant to this matter) was granted in

advance of hearing. At hearing , PetitionerÓs Exhibits 6 through

10 and 13 through 15 were admitted into evidence.

A tr anscript of the proceeding will not be filed with DOAH.

The parties were granted ten days from the time of the hearing

within which to file proposed recommended orders. All proposals

filed have been considered in the preparation of this Recommended

O rder .

FINDING S OF FACT

1. Respondent is licensed by DCF to operate a child care

facility at 1961 Royalview Drive, Port Charlotte, Florida.

RespondentÓs license certificate is C20CH0032. The facilityÓs

current license is effective through July 31, 2015.

2. Petitioner is charged by law to regulate and inspect all

child care facilities in the s tate of Florida to assure

compliance with all licensing standards. Licensing standards are

defined by statute and rule , and are denoted on the ÐInspection

ChecklistÑ us ed by DCF.

3. Prior to November 13, 2013, Jeanette Witmer, a DCF

licensing counselor, was assigned to inspect child care

facilities licensed in Port Charlotte, Florida. Among those

facilities was RespondentÓs Chutes NÓ Ladders 2 , LLC .

4. On November 13, 2013, Ms. Witmer went to Chutes NÓ

Ladders 2 , LLC, to perform a routine inspection. Using the

Inspection Checklist, Ms. Witmer went through the facility noting

pertinent facts.

5. Ms. Witmer considered the rooms designated as Ðinfant

roomsÑ to be two separate rooms. The capacity for each separate

room was clearly and accurately posted. The combined total

occupancy for the two rooms was not exceeded. The issue was not

the square footage of the rooms or the layout of the rooms . A n

issue arose bec ause , based upon the documentation then in use ,

the space was designated as two rooms.

6. As such , each room required the appropriate staffing and

supervision for the space. As a practical consideration ,

Respondent did not treat the space as two rooms. Instead,

Respondent considered a fixed table permanently built into a low

wall as insufficient to constitute a divider between the two

spaces. Respondent , therefore , treated the space as one room.

7. Ms. Witmer noted that supervision could not be provi ded

to all areas of the space by persons standing in one area of the

rooms. In fact , such observation formed the basis for a warning

given to Respondent on that date. Since there were four children

on one side of the space (room 1) and four children on t he other

side of the space (room 2), Ms. Witmer concluded the caregivers

should have been separated, one to each side. Instead, two

caregivers were located on one side of the space and could not

observe the activity of an infant on the floor in the adjace nt

room. As a result , Respondent issued a warning for a standards

violation: not having staff appropriately stationed to meet the

ratio requirement (1:4).

8. Additionally, when the staff member supervising the two -

to three - year - old group could not verba lly confirm how many

children were under her supervision, another warning was issued.

Part of the supervision standard requires staff to be cognizant

of the children in their care.

9. After the routine inspection was completed , a copy of

the Inspection Checklist documenting the issues noted above was

provided to RespondentÓs facility director.

10. In follow - up to the inspection , Michael and Phyllis

Larkin met with Ms. Witmer and Sherrie Quevedo, the DCF licensing

supervisor, in December 2013. Among the concerns was the

designation of the two rooms as two rooms instead of one large

space , and the claim that supervision was an issue.

11. In reality , the facility had the appropriate number of

staff to supervise the children in the two rooms. The iss ue

presented when one of the staff went to the separate side of the

space and left the children on the other side of the ÐdeskÑ

unattended. This warning could have just as easily been about

failure to supervise the children as the ratio standard cited.

O nce brought to the facilityÓs attention, the problem could have

been easily resolved.

12. Similarly, the second warning was minor in that the

facility would be able to instruct staff to be aware of their

charges at all times. Neither of these issues sh ould have been

insurmountable for Respondent. The weight of the credible

evidence supports PetitionerÓs assertion that the December 2013

meeting among the parties was ended on an amicable note with all

in agreement.

13. Ms. Witmer next inspected Respon dentÓs facility in

connection with a complaint filed. Although eventually

determined to be unsubstantiated, Ms. Witmer was required by law

to review activities at the facility that allegedly occurred on

April 11, 2014.

14. To that end , Ms. Witmer went to Respondent on April 16,

2014, to specifically consider licensing standards related to

ratio and supervision: the two standards essential to support

child safety. The allegation claimed a child had been bruised

under his chin by some means.

15. Ms. Witmer and the facility director, Angela Straub,

viewed the video tape kept at RespondentÓs center for the date in

question (April 11, 2014 ). After reviewing the tape , Ms. Witmer

determined that the child who was claimed to have been bruised

was not injur ed. Nevertheless, in reviewing RespondentÓs video,

Ms. Witmer observed other issues.

16. More specifically, Ms. Witmer was able to determine

that B.J. (a staff person employed at the facility) committed

ratio and supervision violations on April 11, 201 4. When

confronted by Ms. Witmer and the video depicting the issues

noted, B.J. admitted the ratio and supervision violations.

17. Subsequently, Respondent terminated B.J.Ós employment

with the facility. Additionally, Respondent removed the ÐtableÑ

se parating the two rooms and designated the one space for

occupancy and staffing.

18. On April 16, 2014, Ms. Witmer advised Ms. Straub and

Mrs. Larkin that based upon the video review of the date of the

alleged incident , the two standards violations would be imposed

against the facility.

19. The video tape for the April 11, 2014 , activities at

RespondentÓs facility remained in RespondentÓs possession. At

all times material to the allegations of this case, Respondent

exercised exclusive control over the video. Respondent did not

maintain a copy of the video of the facility for April 11, 2014.

At hearing , Respondent disputed the accuracy of Ms. WitmerÓs

account of the citations for ratio and supervision for April 11,

2014. The persuasive weight of the credible evidence supports

Ms. WitmerÓs account, the Inspection Checklist she maintained

contemporaneously with the events, and her conclusions regarding

the deficiencies noted.

20. Subsequent to the child abuse investigation being

closed, and in accord ance with DCF policy, the Complaint

Inspection Checklist, Supplemental Inspection Sheet Complaint

Form, and Notice of Administrative Action were sent to the

facility. Respondent timely filed a request for an

administrative hearing.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 120.569 and 120.57, Fla.

Stat. (2013).

22. In this case , Petitioner bears the burden of proof to

establish by clear and convincing evidence that Respondent

committed the acts complained of in the Administrative Complaint .

See Dep Ó t of Banking & Fin . , Div . of Sec . & Inv . Prot . v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); and Pou v. Dep Ó t of Ins . & Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

23 . What constitutes Ðclear and convincingÑ evidence was

described by the court in Evans Packing Co. v. Dep artmen t of

Agric ulture & Consumer Serv ice s , 550 So. 2d 112, 116, n. 5 (Fla.

1st DCA 1989), as follows:

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the evidence 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 produces in the mind of the

trier of fact the firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re Davey ,

645 So. 2d 398 (Fla. 1994); and Walker v. Fla . Dep Ó t of Bus . &

Prof . Reg . , 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J.,

dissenting).

24. The staffing ratios for children in licensed child care

facilities are set forth in s ection 402.305(4), Florida Statutes.

For infants from birth through one year of age , there must be one

child care personnel for every four children.

25. Supervision requirements for licensed child care

facilities are set forth by law. Florida Administrative Code

Rule 65C - 22.001(5)(a), provides:

( 5) Supervision.

( a) Direct supervision means actively

watching and directing childrenÓs activities

within the same room or designated outdoor

play area, and re sponding 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 ca re personnel shall remain

responsible for the supervision of the

children in care, shall be capable of

responding to emergencies, and are

accountable for children at all times,

including when children are separated from

their groups.

26. In this case , Pet itioner has established by clear and

convincing evidence that Respondent committed ratio and

supervision standards violations on November 13, 2013 , and

April 11, 2014. Although not leading to injury or compromised

safety of the children in RespondentÓs c are, DCF is charged to

fairly administer the standards dictated by the Florida

legislature and to work to assure that safety in licensed child

care facilities remains paramount. The sanction sought by DCF is

the minimum required by law and is legally supp orted by the facts

of this case.

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 violated the

ratio and supervision stand ards as alleged , and impos ing an

administrative fine in the amount of $100.00.

DONE AND ENTERED this 24th day of February , 201 5 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of A dministrative 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 24th day of February , 201 5 .

COPIES FURNISHED:

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Phyllis Larkin

Chutes N' Ladders 2, LLC

1961 Royalview Drive

Port Charlotte, Flori da 33948

Eu genie G. Rehak, Esquire

Department of Children and Families

Post Office Box 60085

Fort Myers, Florida 33906

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Flor ida 32399 - 0700

(eServed)

Rebecca Kapusta, Interim General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the rig ht 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.