18-001837 Department Of Children And Families vs. Capc Head Start - Gibson Center Status: Closed Recommended Order on Monday, September 10, 2018.

Summary: Petitioner proved two of the six alleged Class I violations by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 18 - 1837

CAPC HEAD START - GIBSON CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was conducted in this

case on July 17, 2018, via video teleconference at sites in

Tallahassee and Pensacola, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Heari ngs (ÐDOAHÑ).

APPEARANCES

For Petitioner: Katie George, Esquire

Department of Children and Families

160 Governmental Center, Suite 601

Pensacola, Florida 32502

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm , P.A.

17 W est Cervantes Street

Pensacola, Florida 32501 - 3125

STATEMENT OF THE ISSUE

Whether CAP Head Start Î Gibson Center (ÐRespondentÑ)

committed the violations alleged in the Ad ministrative Complaint

issued by the Department of Children and Families (Ðthe

DepartmentÑ) on February 12, 2018.

PRELIMINARY STATEMENT

The Department issued an Administrative Complaint on

February 12, 2018, alleging that Respondent committed

two violation s of section 402.302, Florida Statutes (2017), 1/ and

Florida Administrative Code Rule 65C - 22.001(5) and (6) 2/ by

failing to properly supervise the unloading of school buses on

September 20 and 28, 2017. The Department further alleged that

the aforemention ed incidents resulted in two more violations

because they amounted to child abuse or neglect as defined in

c hapter 39, Florida Statutes. The Department also alleged that

Respondent committed two additional violations by failing to

report the aforementione d incidents to the Department as

required by section 39.201. In sum, the incidents on

September 20 and 28, 2017, led to Respondent being charged with

six different statutory and/or rule violations. Finally, the

Department alleged that Respondent violated section 402.305(5),

and rule 65C - 22.001(6) after an inspection conducted by the

Department on December 13, 2017, found a hole in the floor of

RespondentÓs facility.

In support of its intent to impose a $2,525.00 fine and

revoke RespondentÓs license to operate a child care facility,

the Department alleged that :

[t]he above - referenced violations constitute

grounds to levy this civil penalty and

revoke [Respondent]Ós license pursuant to

section 402.310, Florida Statutes, in that

the conduct of Respondent constitutes

continuing and severe violations of the

minimum standards, rules, and regulations

for operation of a child care facility.

Respondent cannot be trusted to adequately

provide care and supervise children in a

safe manner.

Respondent timely requ ested an administrative hearing on

February 28, 2018, and filed an amended request for hearing on

March 9, 2018.

The Department referred the instant case to DOAH on

April 9, 2018.

The undersigned initially set the final hearing to occur on

June 26, 2018 . However, the final hearing was continued to

July 17, 2018, in order for Respondent to depose two additional

witnesses.

During the final hearing, the Department presented the

testimony of Roger Thompson, the DepartmentÓs Supervisor of

Child Care Regulat ion; Casey Gulley, a family services

counselor; Shacondra Primm, a family services counselor;

Shenevia Jones, a former employee of Respondent; K.N., the

mother of J.H.; and D.J., the mother of M.J. The DepartmentÓs

E xhibits 1 through 12, 14A, 14B, and 15 were accepted into

evidence.

Respondent presented the testimony of Deborah Nagle,

RespondentÓs Director of Compliance, Governance, and Head Start;

Constance Parker, RespondentÓs Director of Housing, Safety, and

Facilities; Judy Dickinson, RespondentÓs Dire ctor of Education;

and Douglas Brown, RespondentÓs Executive Director.

RespondentÓs E xhibits 1 through 3, 5 , 6, and 10 were accepted

into evidence.

The two - volume T ranscript from the final hearing was filed

on August 2, 2018. Both parties filed timely Pr oposed

Recommended Orders that have been considered in the preparation

of this Recommended Order.

FINDING S OF FACT

The following Findings of Fact are based on the oral and

documentary evidence adduced at the final hearing, matters

subject to official reco gnition, and the entire record in this

proceeding:

The Parties and Relevant Provisions of Law

1. The Department is the state agency responsible for

licensing child care facilities in Florida and ensuring that

those facilities comply with requirements impo sed through the

Florida Statutes and the Florida Administrative Code.

2. In order to fulfill that duty, the Department conducts

routine and complaint inspections. Every facility receives

three routine inspections a year.

3. If the Department learns th at a facility may have

committed a violation, then the Department conducts a complaint

inspection within 48 hours of receiving the information.

4. The Department classifies violations as Class I,

Class II, or Class III.

5. Rule 65C - 22.010(1)(d)1., define s Class I violations as

those that Ðare the most serious in nature, pose an imminent

threat to a child including abuse or neglect and which could or

[do] result in death or serious harm to the health, safety or

well - being of a child.Ñ

6. Rule 65C - 22.0 10(1)(d)2., states that Class II

violations Ðare 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.Ñ

7. Rule 65C - 22.010(1)(d)3. pro vides that Class III

violations Ðare less serious in nature than either Class I or

Class II violations, and pose a low potential for harm to

children.Ñ

8. If a facility commits three or more Class I violations

within a two - year period, Rule 65C - 22.010(2)( e)1.b., mandates

that the Department shall suspend, deny or revoke the facilityÓs

license.

9. Section 39.201(1)(a), Florida Statutes, requires that

[a]ny person who knows, or has reasonable

cause to suspect, that a child is abused,

abandoned, or negl ected by a parent, legal

custodian, caregiver, or other person

responsible for the childÓs welfare, as

defined in this chapter, or that a child is

in need of supervision and care and has no

parent, legal custodian, or responsible

adult relative immediately known and

available to provide supervision and care

shall report such knowledge or suspicion to

[the Department] in the manner provided in

subsection (2).

10. Section 39.201(2)(a), requires that

[e]ach report of known or suspected child

abuse, abandon ment, or neglect by a parent,

legal custodian, caregiver, or other person

responsible for the childÓs welfare as

defined in this chapter, except those solely

under s. 827.04(3), and each report that a

child is in need of supervision and care and

has no par ent, legal custodian, or

responsible adult relative immediately known

and available to provide supervision and

care shall be made immediately to [the

Department]Ós central abuse hotline.

11. Rule 65C - 22.001(11)(b) specifies that Ð[f]ailure to

perform the duties of a mandatory reporter pursuant to Section

39.201, F.S., constitutes a violation of the standards in

Sections 402.301 - .319, F.S.Ñ

12. Respondent is a federally funded, nonprofit agency

with its corporate headquarters in Pensacola, Florida.

13. Respondent has 190 employees and four core programs,

the largest of which is a Head Start program serving

935 children in Escambia County.

14. The Gibson Center in Pensacola is a Florida - licensed

childcare facility and part of RespondentÓs Head Start program.

The Gibson Center cares for 190 children every school day and

transports 160 children to and from its facility on buses.

The September 20, 2017 Incident

15. On September 20, 2017, a bus dropped off children at

the Gibson Center, but the bus driver and her aide failed to

conduct a complete visual sweep 3/ to ensure that all the children

had left the bus. As a result, no one realized that a five -

year - old child, J.H., was still on the bus until the children

arrived at their classroom.

16. The bus driver briefly left the bus to retrieve a

stapler from her car, drove to the Ðbus pen,Ñ and began

completing paperwork. After the aide called the driver to

inquire if J.H. was still on the bus, the driver found J.H.

asleep on a seat and unbuckled.

17. J.H. was unattended on the bus for approximately

five minutes.

18. The bus driver and aide disclosed the incident to

their supervisors.

The September 28, 2017 Incident

19. On September 28, 2017, Shenevia Jones, a bus driverÓs

aide, conducted a v isual sweep to ensure that all of the

children were off a bus but failed to notice that a four - year -

old child, M.J., was hiding under a seat.

20. M.J. remained on the bus while it took 20 minutes to

complete an additional route. Upon the busÓs return to the

Gibson Center, Ms. Jones discovered the child after he sprang

from under a seat and said Ðta dah.Ñ

RespondentÓs Actions Following the Incidents

21. RespondentÓs upper management met on September 21,

2017, to discuss the September 20th incident and dec ided that a

review of the loading and unloading procedures would be

conducted with drivers and aides on September 22, 2017. In

addition, the Executive Director would discuss the incident with

all employees on September 23, 2017.

22. After the September 2 8th incident, RespondentÓs

management decided that a more robust response was necessary.

As a result, Ms. Jones was suspended for three days without pay,

and Respondent rewrote its procedures for loading and unloading

buses. 4/ According to Respondent, th ese new procedures were

Ðsite specificÑ in that larger facilities such as the Gibson

Center had different procedures tha n smaller ones. 5/

23. Deborah Nagle, RespondentÓs Director of Compliance,

Governance, and Head Start, reported both incidents to the

r egional Health and Human Services (ÐHHSÑ) Office in Atlanta,

Georgia via an October 6, 2017, e - mail. As a federally - funded,

non - profit agency, Respondent receives funding from HHS.

24. HHS issued a report on February 15, 2018, finding that

Respondent vio lated a federal regulation prohibiting a child

care program from leaving a child behind in a classroom or on a

vehicle.

25. Ms. Nagle and Doug Brown, RespondentÓs Executive

Director, discussed whether the incidents amounted to ÐneglectÑ

within the meani ng of Chapter 39 and determined they were not

reportable events.

26. In October of 2017, the Department issued a new

handbook to child care facilities, and this handbook contained a

section about reporting neglect. After reviewing the

aforementioned sec tion, Ms. Nagle sent an e - mail to Roger

Thompson, the DepartmentÓs Supervisor of Child Care Regulation

in Escambia, Santa Rosa, Okaloosa and Walton Counties, on

Friday, December 8, 2017, 6/ describing the incidents:

I have attached 2 incidents we had with

c hildren on the bus along with the revised

procedure. We had reported this to our

Regional office and have worked with our

Training and Technical Assistance to

complete a corrective action plan and put

enhanced monitoring in place. All staff

will be train ed on Jan. 2 when we return

from the Christmas break on the revised

procedures.

I felt it necessary to send this information

to you after reading the new Field manual

which lists items we must have in policy on

reporting on page 27.

I will be out of th e office until Dec 15 th ,

but will be able to retrieve e - mail while

traveling.

27. Mr. Thompson responded on Monday, December 11, 2017,

with the following message:

Was the Hotline called on the incident?

Also, that needs to be addressed in the

[correcti ve action plan]. Anything like

this needs to be reported immediately to the

Hotline. Not reporting can resort in an

additional Class I violation.

28. Ms. Nagle responded 13 minutes later by stating the

incidents were not reported.

29. Just over an hour later, Ms. Nagle transmitted the

following inquiry:

I have a question. Is what happened

considered an abuse report? To my knowledge

there has not been any specifics on what is

reported other [than] injury to a child or a

report from a parent or othe r staff member

that there was abuse []. We did not

consider these as reportable, but due to the

new field guide thought it necessary to

inform you. So far every call we have made

to the hotline when it was deemed an abuse

situation was only taken as info rmation.

30. Mr. Thompson responded five minutes later with the

following:

Remember . . . it isnÓt always ABUSE. It is

anything that possibly fits Abuse and/or

Neglect. This was NEGLECT. If you contact

Paula Doty at the Gulf Coast Kids House, she

wil l do a great training for free at your

location. She goes into the details. It

would be great for your staff, in - service

training credit, and it may head some of

this stuff off at the pass.

The DepartmentÓs Investigation

31. Mr. Thompson initiated a co mplaint investigation, and

two Department employees, Casey Gully and Shacondra Primm,

inspected the Gibson Center on December 13, 2017. During that

inspection, one of RespondentÓs teachers showed Ms. Primm a hole

in the floor of a modular classroom unit. Approximately

one week prior to the inspection, the teacherÓs foot had fallen

through the floor, resulting in a 6 inch by 12 inch hole about

3 to 4 feet from the classroomÓs entrance. At the time of the

inspection, a trashcan and caution tape covered the hole.

32. Respondent was in the process of collecting bids to

have the hole fixed over the Christmas break.

CONCLUSIONS OF LAW

33. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

34. Disciplinary proceedings, such as the instant case,

are penal in nature. State ex rel. Vining v. Fla. Real Estate

Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Accordingly, the

Department must prove the allegations against Respondent by

clear and convincing evidence. Dep't of Banking & Fin., Div.

of Sec. & Inv. Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

35. Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983), stated that:

clear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be dis tinctly remembered;

the testimony 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

a firm belief or conviction, with out

hesitancy, as to the truth of the

allegations sought to be established.

Id.

36. The Florida Supreme Court later adopted the

Slomowitz court's description of clear and convincing evidence.

See In re Davey , 645 So. 2d 398, 404 (Fla. 1994). The Firs t

District Court of Appeal has also followed the Slomowitz test,

adding the interpretive comment that "[a]lthough this standard

of proof may be met where the evidence is in conflict, . . . it

seems to preclude evidence that is ambiguous." Westinghouse

Ele c. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st

DCA 1991).

37. Section 402.310 authorizes the Department to impose

discipline against licensed childcare facilities. This statute

provides, in pertinent part, that the Department "may administ er

. . . disciplinary sanctions for a violation of any provision of

ss. 402.301 - 402.319, or the rules adopted thereunder."

§ 402.310(1)(a), Fla. Stat.

The Alleged Class I Violations

38. The Department alleges that Respondent violated

section 402.302 and rules 65C - 22.001(5) and (6) on September 20

and 28, 2017, and that the aforementioned violations were

Class I violations.

39. Respondent does not dispute that the incidents on

September 20 and 28, 2017, amount to two Class I violations and

that a fine i s appropriate.

40. Respondent takes issue with the Department charging

two additional Class I violations by alleging that the incidents

were Ðchild abuse or neglectÑ as defined in c hapter 39.

41. Respondent also takes issue with the Department

chargin g two more Class I violations by alleging that section

39.201(1)(a) required that the September 20 and 28, 2017,

incidents be reported to the Department.

42. In sum, the Department is charging Respondent with

six Class I violations based on the Septembe r 20 and 28, 2017,

incidents, and Respondent argues that the incidents can only

support two Class I violations.

43. Whether Respondent committed two or six Class I

violations has significant consequences because rule 65C -

22.010(2)(e)1.b. mandates that th e Department shall suspend,

deny , or revoke a facilityÓs license if that facility commits

three or more Class I violations within a two - year period.

44. Turning to whether Respondent committed the alleg ed

violations at issue, rule 65C - 22.001(11)(a) speci fies that

Ð[a]cts or omissions that meet the definition of child abuse or

neglect provided in Chapter 39, F.S., constitute a violation of

the standards in Sections 402.301 - .319, F.S., and shall support

imposition of a sanction, as provided in Section 402.3 10, F.S.Ñ

45. The version of s ection 39.01(2) in effect when the

alleged violations occurred define d ÐabuseÑ as

any willful act or threatened act that

results in any physical, mental, or sexual

abuse, injury, or harm that causes or is

likely to cause th e childÓs physical,

mental, or emotional health to be

significantly impaired. Abuse of a child

includes act or omissions.

4 6 . The instant case does not involve any allegations of

physical, mental, or sexual abuse and/or injury. Therefore, in

order t o demonstrate that the incidents on September 20 and 28,

2017 , amount to ÐabuseÑ within the meaning of section 39.01(2),

the Department must prove by clear and convincing evidence that:

(a) there was an act or omission that resulted in harm; and that

(b) t he harm caused or was likely to cause the childÓs physical,

mental, or emotional health to be significantly impaired.

4 7 . The version of s ection 39.01(30) in effect when the

alleged violations occurred provide d , in pertinent part , that

ÐharmÑ to a ch ildÓs health or welfare can occur when any person

(a) Inflicts or allows to be inflicted upon

the child physical, mental, or emotional

injury. In determining whether harm has

occurred, the following factors must be

considered in evaluating any physical,

mental, or emotional injury to a child: the

age of the child; any prior history of

injuries to the child; the location of the

injury on the body of the child; the

multiplicity of the injury; and the type of

trauma inflicted. Such injury includes, but

is not limited to:

1. Willful acts that produce the following

specific injuries:

a. Sprains, dislocations, or cartilage

damage.

b. Bone or skull fractures.

c. Brain or spinal cord damage.

d. Intracranial hemorrhage or injury to

other internal organs.

e. Asphyxiation , suffocation, or drowning.

f. Injury resulting from the use of a

deadly weapon.

g. Burns or scalding.

h. Cuts, lacerations, punctures, or bites.

i. Permanent or temporary disfigurement.

j. Permanent or temporary loss or

impairment of a body part or function. As

used in this subparagraph, the term

ÐwillfulÑ refers to the intent to perform an

action, not to the intent to achieve a

result or to cause an injury.

* * *

3. Leaving a child without adult

supervision or arrangement appropriate for

the childÓs age or mental or physical

condition, so that the child is unable to

care for the childÓs own needs or anotherÓs

basic needs or is unable to exercise good

judgment in responding to any kind of

physical or emotional crisis.

4 8 . It is not difficult to conclude that a four - year - old

childÓs physical, mental, or emotional health could be

significantly impaired if that child was left alone on a bus for

anything other than a brief amount of time. That is especially

true given the high temperatures prese nt in Florida for much of

the year.

4 9 . However, the statutory definition of ÐabuseÑ requires

that there be harm that causes or is likely to cause the childÓs

physical, mental, or emotional health to be significantly

impaired.

50 . Section 39.01(30) defin es ÐharmÑ as occurring when one

Ð[i] nflicts or allows to be inflicted upon the child physical,

mental, or emotional injury.Ñ

5 1 . In the instant case, no one inflicted any injury on

the children left on the buses.

5 2 . ÐHarmÑ within the meaning of sectio n 39.01(30)(a)(3)

can also occur by Ð[l] eaving a child without adult supervision

or arrangement appropriate for the childÓs age or mental or

physical condition . . . .Ñ

5 3 . The only time either child was alone on a bus occurred

on September 20, 2017, wh en the driver left the bus to retrieve

a stapler from her car.

5 4 . Because disciplinary statutes must be strictly

construed against the agency seeking to impose discipline, that

fact cannot support a finding that there was ÐharmÑ within the

meaning of section 39.01(30)(a)(3). See Munch v. DepÓt of

ProfÓl Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla.

1 st DCA 1992). As a result, the incidents on September 20 and

28, 2017 , do not amount to ÐabuseÑ within the meaning of section

39.01(2).

5 5 . Th e analysis now turns to whether the incidents amount

to ÐneglectÑ within the meaning of section 39.01(45). That

statute provide d that ÐneglectÑ

occurs when a child is deprived of, or is

allowed to be deprived of, necessary food,

clothing, shelter, or med ical treatment or a

child is permitted to live in an environment

when such deprivation or environment causes

the childÓs physical, mental, or emotional

health to be significantly impaired or to be

in danger of being significantly impaired.

The foregoing c ircumstances shall not be

considered neglect if caused primarily by

financial inability unless actual services

for relief have been offered to and rejected

by such person. A parent or legal custodian

legitimately practicing religious beliefs in

accordance with a recognized church or

religious organization who thereby does not

provide specific medical treatment for a

child may not, for that reason alone, be

considered a negligent parent or legal

custodian; however, such an exception does

not preclude a cour t from ordering the

following services to be provided when the

health of the child so requires:

(a) Medical services from a licensed

physician, dentist, optometrist, podiatric

physician, or other qualified health care

provider; or

(b) Treatment by a du ly accredited

practitioner who relies solely on spiritual

means for healing in accordance with the

tenets and practices of a well - recognized

church or religious organization.

Neglect of a child includes acts or

omissions.

56. The facts associated with the instant case do not fall

within the definition of ÐneglectÑ set forth in section

39.01(45). That is particularly true given that the statute

must be strictly construed in RespondentÓs favor.

57. Because the incidents on September 20 and 28 , 2017, do

not amount to ÐabuseÑ or ÐneglectÑ as defined in section 39.01,

the mandatory reporting duty in 39.201(1)(a) was not triggered.

58. In sum, the Department only proved that Respondent

committed two Class I violations.

The Alleged Class III V iolation

59. The Department alleges that the hole found by its

inspectors during the December 13, 2017, inspection amounts to a

violation of section 402.305(5), Florida Statutes, and rule 65C -

22.001(6).

60. The version of s ection 402.305(5) in effect d uring the

inspection pertain ed to Ðphysical facilitiesÑ and provide d that :

[m]inimum standards shall include

requirements for building conditions, indoor

play space, outdoor play space, napping

space, bathroom facilities, food preparation

facilities, outdo or equipment, and indoor

equipment. Because of the nature and

duration of drop - in child care, outdoor play

space and outdoor equipment shall not be

required for licensure; however, if such

play space and equipment are provided, then

the minimum standards shall apply to drop - in

child care. With respect to minimum

standards for physical facilities of a child

care program for school - age children which

is operated in a public school facility, the

department shall adopt the State Uniform

Building Code for Publ ic Educational

Facilities Construction as the minimum

standards, regardless of the operator of the

program . The Legislature intends that if a

child care program for school - age children

is operated in a public school, the program

need not conform to standa rds for physical

facilities other than the standards adopted

by the Commissioner of Education.

(emphasis added).

61. The version of rule 65C - 22.001(6) in effect during the

inspection of the Gibson Center pertains to Ðchild care

standardsÑ and mandat es that Ð[c]hild care programs must follow

the standards found in the ÒChild Care Facility Handbook,Ó

October 2017, incorporated herein by reference.Ñ

62. The Department proved by clear and convincing evidence

that there was a 6 inch by 12 inch hole in the floor of a

classroom in the Gibson Center. However, the Department did not

move the standards referenced in section 402.305(5) and rule

65C - 22.001(6) into evidence. As a result, the Department has

not prove n by clear and convincing evidence that Resp ondent

violated section 402.305(5) or rule 65C - 22.001(6).

Recommended Penalty

63. Rule 65C - 22.010(1)(e)1.a. provide d that

[f]or the first and second violation of a

Class I standard, [the Department] shall,

upon applying the factors in Section

40 2.310(1), F.S., issue an administrative

complaint imposing a fine not less than $100

nor more than $500 per day for each

violation, and may impose other disciplinary

sanctions in addition to the fine.

64. Section 402.310(1)(b) provide d that the follow ing

factors Ðshall be consideredÑ in determining the appropriate

disciplinary action: (a) the severity of the violation;

(b) corrective measures taken by the licensee; and (c) any

previous violations by the licensee.

65. Although Respondent implemented significant and

effective corrective actions, g iven the severity of the

violations at issue in the instant case, a $500.00 fine for each

violation and any other disciplinary sanction the Department

deems necessary to ensure safety at the Gibson Center ( sho rt of

licensure revocation or suspension ) would be appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families issue a Final Order imposing a $1,000.00 fine on

Respondent.

DONE AND ENTERED this 10 th day of September , 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 10 th day of September , 2018 .

ENDNOTE S

1/ Unless stated otherwise, all statutory re ferences will be to

the 2017 version of the Florida Statutes.

2/ The provisions of the Florida Administrative Code relevant to

the instant case were amended following the incidents of

September 20 and 28, 2017. With regard to those incidents, the

unde rsigned will rely on the versions in effect on September 20

and 28, 2017. See generally Anglicklis v. DepÓt of ProfÓl Reg. ,

593 So. 2d 298, 300 (Fla. 2d DCA 1992)(holding that the

applicants could not be found to have violated a rule that was

not in effec t at the time of the audit.).

3/ Rule 65C - 22.001 contain ed provisions governing the

transportation of children , and pertinent provisions of

subsection (6) state d the following :

(e) Each child, when transported, must be in

an individual factory install ed seat belt or

federally approved child safety restraint,

unless the vehicle is excluded from this

requirement by Florida Statute.

(f) When transporting children, staff - to -

child ratios must be maintained at all

times. The driver may be included in the

staff - to - child ratio. Prior to transporting

children and upon the vehicle(s) arrival at

its destination, the following shall be

conducted by the driver(s) of the vehicle(s)

used to transport the children:

1. DriverÓs Log. A log shall be maintained

for all children being transported in the

vehicle. The log shall be retained for a

minimum of four months. The log shall

include each childÓs name, date, time of

departure, time of arrival, signature of

driver, and signature of second staff member

to verify the driverÓs log and that all

children have left the vehicle.

2. Upon arrival at the destination, the

driver of the vehicle shall:

a. Mark each child off the log as the

children depart the vehicle,

b. Conduct a physical inspection and visual

sweep o f the vehicle to ensure that no child

is left in the vehicle; and,

c. Sign, date and record the driverÓs log

immediately, verifying that all children

were accounted for, and that the visual

sweep was conducted.

3. Upon arrival at the destination, a

sec ond staff member shall:

a. Conduct a physical inspection and visual

sweep of the vehicle to ensure that no child

is left in the vehicle; and,

b. Sign, date and record the driverÓs log

immediately, verifying that all children

were accounted for and that the log is

complete.

4/ Ms. Jones worked as a teacherÓs assistant at the Gibson

Center. Prior to September 28, 2017, Ms. Jones had not received

any training as a bus assistant. There had been training on

transportation procedures at the Gibson Cente r, but Ms. Jones

had been unable to attend.

5/ On December 14, 2017, RespondentÓs Board of Directors revised

the procedure governing the Ðloading and unloading of children

riding Head Start buses.Ñ The following describes the new

morning procedure f or unloading children at the Gibson Center:

Bus Driver

- Upon unloading at the center, the Bus

Driver will call each child by name, placing

a ÒPÓ in the bottom half of the AM box on

the trip ticket by the childÓs name as the

child exits the bus. An ÒAÓ will be placed

in the bottom half of the box for children

not picked up.

- The Driver will count the number of

children who exited the bus ensuring it is

the same number as on the trip ticket.

- The Driver will confirm with the Escort

and the ground aid e that the number of

children on their count matches with the

count they also have.

- If there is a discrepancy in the count

among the driver and aides, the bus may not

move until rectified.

- If discrepancy occurs, dri v er will do

another face - to - fac e c heck off and head

count.

- Once all children have cleared the bus,

the driver will perform a physical

inspection and visual sweep of the entire

vehicle from the front of the bus to the

back, checking all seats, under seats and

rows.

- The Driver will sig n, date and put the

time of return to the center attesting that

the bus has had a physical inspection and

visual sweep after EACH load on both their

trip ticket and the EscortÓs trip ticket.

Bus Escort

- Once the bus is parked, the Escort will

unbuckle e ach child.

- Children will remain seated until they are

called by name according to the order of the

Trip Ticket.

- When the childÓs name is called the child

will proceed to the front of the bus to

exit.

- As the children exit the bus, escort will

place a ÒPÓ on the bottom half of the AM box

on the trip ticket by the childÓs name.

- The Escort will verify on their trip

ticket that every child that was marked as

they entered the bus and as they exited the

bus matches.

- The Escort will count the number of

children who exited the bus ensuring it is

the same number as on the trip ticket.

- The Escort will conf i rm with the Driver

and the ground aide that the number of

children on their count matches with the

count they also have.

- If there is a discrepan cy in the count

among the Escort, Driver and ground aides,

the bus may not move until rectified.

- If discrepancy occurs, Escort will do

another face - to - fac e check off and head

count.

- Once all children have cleared the bus,

and have been passed to the ground aide, the

Escort will perform a physical inspection

and visual sweep of the entire vehicle from

the front of the bus to the back, checking

all seats, under seats and rows.

- For the second load when there is no

ground aide, the Escort must return t o the

bus once children are delivered to

classrooms to make the sweep of the bus.

- The Escort will sign, date and put the

time of return to the center attesting that

the bus has had a physical inspection and

visual sweep after EACH load on both their

cop y of the trip ticket and the DriverÓs

copy of the trip ticket.

Ground Aide

- As the children exit the bus, the ground

aide will mark off the child with a ÒPÓ in

the ÒBusÓ column of the student checklist.

6/ Mr. Thompson testified that he initially lear ned of the

incidents in late November or early December of 2017, during a

conversation with one of RespondentÓs staff members. The staff

member had been under the impression that Mr. Thompson was

already aware of the incidents.

COPIES FURNISHED:

Katie George, Esquire

Department of Children & Families

160 Governmental Center, Suite 601

Pensacola, Florida 32502

(eServed)

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Lacey K antor, Esquire

Department of Children and Families

Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahass ee, Florida 32399 - 0700

(eServed)

John Jackson, Acting General Counsel

Department of Children and Families

Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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.