99-003964 Department Of Children And Family Services vs. Children`s Academy Preschool No. 3 Status: Closed Recommended Order on Wednesday, December 8, 1999.

Summary: A $900 fine for nine health code violations at a child-care facility was determined to be appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 99-3964

)

CHILDREN'S ACADEMY PRESCHOOL NO. 3, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on November

23, 1999, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Rosemarie Rinaldi, Esquire

District 11 Legal Office

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N-1014

Miami, Florida 33128

For Respondent: Patrick Adeleke, Co-Owner

Children's Academy Preschool No. 3,

13801 Memorial Highway

North Miami, Florida 33161

STATEMENT OF THE ISSUE

Whether Respondent should be fined $900.00 for violating

licensing standards applicable to child care facilities, as

alleged by Petitioner in its July 16, 1999, letter to Respondent.

PRELIMINARY STATEMENT

By letter dated July 16, 1999, the Department of Children

and Family Services (Department) notified Petitioner of its

intent to impose upon Petitioner a fine in the amount of $900.00

for nine specified "violations of the minimum standards, rules

and regulations for the operation of a Child Care Facility [set

forth in] Florida Administrative Code, Rule 65C-22 and Section

402.305, Florida Statutes." Respondent thereafter requested a

hearing on the Department's proposed action. On September 21,

1999, the matter was referred to the Division of Administrative

Hearings (Division) for the assignment of an Administrative Law

Judge to conduct the hearing Respondent had requested.

As noted above, the hearing was held on November 23, 1999.

At the hearing, three witnesses testified. Ann Marie Alderman, a

Sanitation and Safety Specialist with the Miami-Dade Health

Department, and Linda Reiling, a Family Service Counselor with

the Department, testified for the Department. In addition to

Ms. Alderman's and Ms. Reiling's testimony, the Department

offered one exhibit, Petitioner's Composite Exhibit 1, which was

received by the undersigned. Patrick Adeleke, Respondent's co-

owner, testified on behalf of Respondent. Respondent presented

no other evidence.

At the conclusion of the evidentiary portion of the hearing

on November 23, 1999, the undersigned inquired of the parties as

to whether they intended to file proposed recommended orders. In

response to the undersigned's inquiry, Respondent's

representative, Mr. Adeleke, indicated that Respondent would be

waiving its right to file a proposed recommended order. Counsel

for the Department, on the other hand, indicated that she would

be filing a proposed recommended order on behalf of the

Department. The undersigned thereupon, on the record, announced

that the Department's proposed recommended order had to be filed

no later than 10 days from the date of the conclusion of the

hearing.

The Department timely filed its Proposed Recommended Order

on December 2, 1999. In making the recommendation contained in

this Recommended Order, the undersigned has given careful

consideration to the Department's Proposed Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as

a whole, the following findings of fact are made:

1. Children's Academy Preschool No. 3 (Facility) is a child

care facility licensed by the Department. It is located at 16263

Northwest Second Avenue, North Miami Beach, Florida.

2. Patrick Adeleke and his wife, Mary Adeleke, have owned

the Facility since 1996.

3. The Facility was in poor condition when the Adelekes

purchased it in 1996. The Adelekes have made improvements to the

Facility (albeit in a slow and deliberate manner).

4. In October of 1996, shortly after the Adelekes assumed

ownership of the Facility, Ann Marie Alderman, a Sanitation and

Safety Specialist with the Department, conducted an inspection of

the Facility and found numerous health code violations.

5. Ms. Alderman returned to the Facility in February of

1998. Her inspection of the Facility on this return visit, like

her previous inspection in October of 1996, revealed a large

number of health code violations. These violations were

ultimately corrected.

6. Ms Alderman again visited the Facility on April 15,

1999. The purpose of this visit was to conduct an annual health

inspection.

7. Ms. Alderman found numerous health code violations

during her April 15, 1999, visit to the Facility.

8. Following her inspection, Ms. Alderman prepared an

inspection report, which accurately described the violations that

existed at the Facility at the time of the inspection and which

gave notice that these violations needed to be corrected by

8:00 a.m. on May 3, 1999. Before leaving the Facility, she

handed this inspection report to the person in charge of the

Facility that day, Carmen Macrena.

9. Ms. Alderman made a follow-up visit to the Facility on

May 3, 1999, and discovered that there were still health code

violations. Children were not spaced 18 inches apart while

napping. Most of the emergency lights did not work. The floor

in the hot water closet in Toddler Room No. 2 was dirty. The

dryer vent was disconnected. There was no working thermometer in

the refrigerator in the Middle Baby Room or in the kitchen

freezer. Discarded appliances and other non-usable items were in

the back yard. An air conditioning unit in the Middle Baby Room

needed cleaning. Dish detergent was located in an area where it

could be reached by children attending the Facility.

10. These continuing violations were corrected

approximately a week after Ms. Alderman's May 3, 1999,

reinspection.

11. Upon being made aware of the violations that existed at

the Facility as of May 3, 1999, the Department determined that

Respondent should be fined $900.00.

12. By letter dated July 16, 1999, the Department advised

Respondent of its intention to impose such a fine.

13. Thereafter, Respondent requested an administrative

hearing on the matter.

CONCLUSIONS OF LAW

14. The Department has been statutorily delegated the

authority to establish, by rule, licensing standards for child

care facilities in Florida. The extent of the Department's

authority is described in Section 402.305, Florida Statutes,

which provides, in pertinent part, as follows:

(1) Licensing standards.--The department

shall establish licensing standards that each

licensed child care facility must meet

regardless of the origin or source of the

fees used to operate the facility or the type

of children served by the facility.

(a) The standards shall be designed to

address the following areas:

1. The health, sanitation, safety, and

adequate physical surroundings for all

children in child care. . . .

(c) The minimum standards for child care

facilities shall be adopted in the rules of

the department and shall address the areas

delineated in this section. The department,

in adopting rules to establish minimum

standards for child care facilities, shall

recognize that different age groups of

children may require different standards.

The department may adopt different minimum

standards for facilities that serve children

in different age groups, including school-age

children. . . .

(5) Physical facilities.--Minimum standards

shall include requirements for building

conditions, indoor play space, outdoor play

space, napping space, bathroom facilities,

food preparation facilities, outdoor

equipment, and indoor equipment. . . .

(7) Sanitation and safety.--

(a) Minimum standards shall include

requirements for sanitary and safety

conditions . . . .

15. The Department has adopted such "licensing standards."

They are found in Chapter 65C-22, Florida Administrative Code.

16. Rule 65C-22.002, Florida Administrative Code, imposes

requirements relating to the "physical environment" in child care

facilities. It provides, in pertinent part, as follows:

(1) General Requirements. . . .

(b) All child care facilities must be in

good repair, free from health and safety

hazards, clean, and free from vermin

infestation. During the hours that the

facility is in operation, no portion of the

building shall be used for any activity which

endangers the health and safety of the

children.

(c) All areas and surfaces accessible to

children shall be free of toxic substances

and hazardous materials. . . .

(e) All potentially harmful items including

cleaning supplies, flammable products,

poisonous, toxic, and hazardous materials

must be labeled. These items as well as

knives and sharp tools shall be stored in

locations inaccessible to the children in

care.

(2) Rooms Occupied by Children.

(a) All rooms must have lighting the

equivalent of 20 foot candles to allow for

supervision and for safe methods of entering

and exiting each room. . . .

(c) All rooms shall be kept clean,

adequately ventilated and in good

repair. . . .

(4) Outdoor Play Area. . . .

(c) The outdoor play area shall be clean,

free of litter, nails, glass and other

hazards. . . .

(5) Napping and Sleeping Space. For the

purpose of these standards, sleeping refers

to the normal overnight sleep cycle while

napping refers to a brief period of rest

during daylight or early evening hours. . . .

(e) A minimum distance of eighteen (18)

inches must be maintained around individual

napping and sleeping spaces. Exit areas must

remain clear in accordance with fire safety

regulations. . . .

(7) Fire Safety.

(a) Unless statutorily exempted, all child

care facilities shall conform to state

standards adopted by the State Fire Marshal,

Chapter 4A-36, Florida Administrative Code,

Uniform Standards for Life Safety and Fire

Prevention in Child Care Facilities and shall

be inspected annually. A copy of the current

and approved annual fire inspection report by

a certified fire inspector must be on file

with the department or local licensing

agency. . . .

(9) Equipment and Furnishings.

(a) Indoor Equipment . . .

2. Toys, equipment and furnishings must be

safe and maintained in a sanitary condition.

(b) Outdoor Equipment . . .

4. All equipment, fences, and objects on the

facility's premises shall be free of sharp,

broken and jagged edges and properly placed

to prevent overcrowding or safety hazards in

any one area.

17. The Legislature, in addition to authorizing the

Department to establish the "licensing standards" found in

Chapter 65C-22, Florida Administrative Code, has, in

Section 402,310, Florida Statutes, autho rized the Department to

impose penalties, including administrative fines, upon child care

facilities that violate these "licensing standards."

Section 402.310, Florida Statutes, provides, in pertinent part,

as follows:

(1)(a) The department or local licensing

agency may deny, suspend, or revoke a license

or impose an administrative fine not to

exceed $100 per violation, per day, for the

violation of any provision of ss. 402.301-

402.319 or rules adopted thereunder.

However, where the violation could or does

cause death or serious harm, the department

or local licensing agency may impose an

administrative fine, not to exceed $500 per

violation per day.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation, including

the probability that death or serious harm to

the health or safety of any person will

result or has resulted, the severity of the

actual or potential harm, and the extent to

which the provisions of this part have been

violated.

2. Actions taken by the licensee to correct

the violation or to remedy complaints.

3. Any previous violations of the licensee.

(2) When the department has reasonable cause

to believe that grounds for the denial,

suspension, or revocation of a license or

imposition of an administrative fine exist,

it shall determine the matter in accordance

with procedures prescribed in

chapter 120. . . .

18. At any administrative hearing held "in accordance with

procedures prescribed in [C] hapter 120," Florida Statutes, the

Department, if it seeks to impose an administrative fine upon a

child care facility for violating "licensing standards," bears

the burden of establishing the accused child care facility's

guilt of the alleged violation(s). Proof greater than a mere

preponderance of the evidence must be presented. Clear and

convincing evidence is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996)("[A]n

administrative fine deprives the person fined of substantial

rights in property. Administrative fines . . . are generally

punitive in nature. . . . Because the imposition of

administrative fines . . . are penal in nature and implicate

significant property rights, the extension of the clear and

convincing evidence standard to justify the imposition of such a

fine is warranted."); Section 120.57(1)(j), Florida Statutes

("Findings of fact shall be based on a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute."). "'[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 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,

without hesitancy, as to the truth of the allegations sought to

be established.'" In re Davey , 645 So. 2d 398, 404 (Fla. 1994),

quoting, with approval, from Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983).

19. In the instant case, after determining that "reasonable

cause" existed to fine Respondent $900.00 for committing nine

"violations of minimum standards, rules and regulations for the

operation of a Child Care Facility [set forth in] Florida

Administrative Code, Rule 65C-22 and Section 402.305, Florida

Statutes," the Department, by letter dated July 16, 1999,

notified Respondent of its intention to impose such a fine and of

Respondent's right to request an administrative hearing on the

matter.

20. Respondent requested and received such an

administrative hearing.

21. At the administrative hearing, clear and convincing

evidence was presented establishing that the violations alleged

by the Department were committed.

22. Mr. Adeleke, during his presentation at the hearing,

admitted the existence of these violations. He contended,

however, that a $900.00 fine was too severe a penalty to impose

for these violations given his and his wife's efforts to make

improvements at the Facility and the Facility's limited budget.

He suggested that a $200.00 fine would be "more than reasonable."

23. While the Adelekes have made improvements to the

Facility since they purchased it and ultimately corrected the

violations cited in the Department's July 16, 1999, letter,

taking into account the number and nature of these violations,

the length of time it took to correct them, and the previous

violations (not cited in Department's July 16, 1999, letter) that

were observed at the Facility after the Adelekes' purchase, the

$900.00 fine proposed by the Department (which is considerably

less than the fine it could have imposed) is appropriate and

should not be reduced. 1/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department issue a final order finding

Respondent guilty of the violations cited in its July 16, 1999,

letter to Respondent and fining Respondent a total of $900.00

($100.00 per violation) for these violations.

DONE AND ENTERED this 8th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of December, 1999.

ENDNOTE

1/ The Department has not given notice of its intent to, and

therefore may not, impose a fine greater than $900.00 for these

violations. See Williams v. Turlington , 498 So. 2d 468 (Fla. 3d

DCA 1986)("Since Williams was not given notice by either the

complaint or any later proceedings that he was at risk of having

his license permanently revoked, the Commission's imposition of

the non-prayed for relief of permanent revocation, even if

justified by the evidence, was error.").

COPIES FURNISHED:

Rosemarie Rinaldi, Esquire

District 11 Legal Office

Department of Children and

Family Services

401 Northwest Second Avenue

Suite N-1014

Miami, Florida 33128

Patrick Adeleke

Mary Adeleke

16263 Northwest Second Avenue

Miami, Florida 33181

Patrick Adeleke

Mary Adeleke

13801 Memorial Highway

North Miami, Florida 33161

John S. Slye, General Counsel

Department of Children and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Samuel C. Chavers, Acting Agency Clerk

Department of Children and Family Services

Building 2, Room 204B

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.