STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANNON R. MCCARTHY, d/b/a ) LITTLE BEARS DAY CARE CENTER, )

)

Petitioner, )

vs. ) Case No. 01-2603

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on August 30, 2001, in Key Largo, Florida, before Florence Snyder Rivas, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Dienstag, Esquire

21 Southeast First Avenue, Suite 800 Miami, Florida 33131

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Families

401 Northwest Second Avenue Suite N-1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

At issue is whether Respondent’s license to operate a child care center should be revoked.

PRELIMINARY STATEMENT

By letter dated April 2, 2001, the Department of Children and Families (the “Department”) notified Petitioner of its intent to revoke child care license pursuant to Section 402.310, Florida Statutes (2000), for violation of minimum child care standards.

Petitioner timely requested a Section 120.57(1), Florida Statutes, hearing on the Department's proposed action. On July 2, 2001, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing.

The hearing was held on August 30, 2001. Petitioner testified on her own behalf and also presented the testimony of Pastor Ralph Williams. Additionally, Petitioner offered three exhibits into evidence.

The Department presented the testimony of Maricel Perez, Stacy Cooper, Erin Decoste, Robin Kamrow, Kathryn Heal, and Molly Fettig, and introduced 19 exhibits into evidence.

The transcript of the final hearing was filed on September 19, 2001. A timely agreed-upon motion for additional time to submit proposed recommended orders was filed, and an enlargement of time was granted through October 23, 2001.

Respondent timely filed a Proposed Recommended Order which was carefully considered in the preparation of this Recommended Order. Petitioner neither moved for nor received an additional enlargement of time. The undersigned had reviewed the case and decided it on the merits when Petitioner filed an untimely Proposed Recommended Order on October 30, 2001.

FINDINGS OF FACT

1. From February 2, 1999, until April of 2001, when they sold their business assets to the Church of the Nazarene, Petitioner Shanion1 McCarthy (McCarthy) and her then-partner Maricel Perez (Perez) owned and operated the Little Bears Day Care Center (Little Bears). McCarthy and Perez were equal partners in the purchase, ownership, and operation of Little Bears. Both had been employed at Little Bears prior to going into business together.

2. McCarthy had been a competent, caring, day care worker for over a decade. She did not shirk form unpleasant obligations, such as the duty to report child abuse, even when it meant exposing herself to abuse and retaliation from the accused abuser.

3. Within months of forming their partnership, McCarthy and Perez began to seek a better facility for their business, and began making plans to move Little Bears to a new location.

   Perez, however, began to plan a personal business strategy, which involved opening the new center in her own name, dissolving the partnership, and recruiting Little Bears employees to work at the new center in competition with McCarthy.

4. One of the employees whom Perez would later hire away from Little Bears was Stacy Cooper (Cooper).

5. The Department's primary charge against McCarthy is that on March 19, 2001, McCarthy was "not aware" that a three- year-old child named Sergio had left Little Bears through a bathroom door which exited to the outside after going to the bathroom and removing his wet underwear and shorts.

6. It is undisputed that Sergio did leave the center and was shortly thereafter found by Robin Kamrow (Kamrow), an employee of a nearby auto-transmission shop.

7. Sergio was able to let himself out the bathroom door because he had been granted permission to go to the bathroom, without supervision, by Cooper.

8. At all times material to this incident, Cooper, and not McCarthy, was the child care worker directly responsible for Sergio's supervision. Cooper was eager to leave for lunch with a co-worker, and did so without first verifying that Sergio was back in class, and without advising McCarthy that the child had been sent to the bathroom by himself.

9. The incident could have ended tragically, but did not, due to Kamrow's willingness to attend to a little boy walking alone with a dog.

10. The dog turned out to be owned by Sergio's uncle, who lived directly behind the day care center. Upon exiting to the outside from the Little Bears bathroom, Sergio proceeded to his uncle's house and took the dog with the intention of having the dog accompany him to his home, some seven blocks away.

11. Apparently Sergio has not been taught to fear strangers, for he willingly allowed Kamrow to put a rag on his uncovered bottom, and to pick him up and carry him the rest of the way home. Sergio was able to direct Kamrow to his family's home, telling her where and where not to turn.

    Kamrow released Sergio to his grandmother.

    
    

12. Rather than telephone the day care center or the police, Sergio's grandmother went to the center to confront the owners. By this time, McCarthy had discovered that Sergio was missing and had called the police.

13. At the time of the incident, Sergio's family knew, but had not informed Little Bears, that Sergio had a propensity to run away.

14. Immediately after this incident, McCarthy had the locks child proofed and installed a chain link fence, although the law did not require that either of these things be done.

15. In its letter of April 2, 2001, the Department further alleges that McCarthy asked a staff member to lie about this incident, and that McCarthy told the Department that Sergio was under the supervision of a staff person who was actually out of the center on a lunch break.

16. The only evidence that McCarthy asked a staffer to lie was offered by Cooper. Cooper claimed that McCarthy asked her to not tell investigators that Sergio had let the dog out of his uncle's gate and that Sergio was riding a tricycle.

17. The undersigned rejects Cooper's testimony on this matter as patently implausible. Cooper never claimed to have personal knowledge of any aspect of Sergio's escape.

    Moreover, there was never any evidence from any source that he had a tricycle.

18. These silly fabrications, coupled with Cooper's deceptive demeanor under oath and her financial stake in permanently eliminating McCarthy as a competitor of Perez's day care center, all contribute to the undersigned's conclusion that Cooper's testimony is unworthy of belief. Cooper is the only witness who claims personal knowledge that McCarthy's negligence was the proximate cause of Sergio's

    escape. To the contrary, the evidence establishes that Cooper lied under oath for the most obvious of reasons---to shift responsibility from herself to McCarthy.

19. The Department also alleges that Little Bears "has had a history of problems." In support of this allegation, the Department relies primarily upon three incidents.

20. On January 12, 1999, the Department found Little Bears to be out of compliance with minimum child care standards because the center was over capacity. However, on that date, McCarthy was an employee, not an owner. There is no evidence that McCarthy had any legal obligation or authority to deny admittance to a child who had been duly enrolled by McCarthy's employer.

21. On July 11 1999, the Department again cited Little Bears for a violation of minimum child care standards because the center had 26 children enrolled.

22. On this date, McCarthy and Perez were in an ownership position and obliged to comply with state standards. Based upon the square footage of Little Bears (as opposed to the adult-child ratios, which were in compliance) 23 was the upper limit of enrollment. McCarthy acted promptly and worked with the Department to correct the violation.

23. There is no evidence that this violation posed a threat to the health or safety of any child in care. At least

    one child was granted a Department waiver and permitted to remain after the parent complained about being forced to go elsewhere for child care. The Department did not seek to punish this violation, but rather worked to accommodate the needs of the families which relied on the center.

24. The third incident alleged as part of the "history of problems" is an incident on February 22, 2000, in which McCarthy "engaged in a physical altercation with her daughter on the grounds of the Little Bears Day Care Center."

25. Although the Department alleged that McCarthy's daughter, Chastity, was employed at the center at the time of the incident, no evidence was offered to support that allegation. Instead, the evidence revealed that Chastity, angry and upset that McCarthy had called police to report that Chastity was at a motel, possibly engaging in illegal or dangerous activities with her boyfriend, showed up unannounced, uninvited, and greatly agitated, at Little Bears.

26. Chastity came to the door and demanded to confront her mother. McCarthy made every effort to keep the argument away from the children. Chastity became violent and McCarthy reacted in self-defense to protect herself and to restrain and calm her daughter.

27. A police investigation revealed no wrongdoing by McCarthy. The Department imposed a $100 fine for the incident which McCarthy personally paid.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

29. The Department has the burden of proof in this proceeding. The Department must show by clear and convincing evidence that Petitioner committed the acts alleged in the Administrative Complaint, and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

30. The Department has the authority to revoke a child care license for violation of minimum child care standards pursuant to Section 402.310, Florida Statutes:

    (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.

    
    

31. In addition, the Department contends that the incidents set forth in its letter of April 2, 2001, constitute violations of the following statutes and rules:

    1. Section 402.302, Florida Statutes, which defines a child care operator and owner as follows:

       1. "Operator" means any onsite person ultimately responsible for the overall operation of a child care facility, whether or not he or she is the owner or administrator of such facility.

       2. "Owner" means the person who is licensed to operate the child care facility.

          
          

    2. Section 402.305, Florida Statutes, sets the licensing standards for child care facilities:

       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.

          1. 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.

             2. The health and nutrition of all children in child care.

             3. The child development needs of 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.

             
             

    3. The statutory licensing standards which have been codified in Florida Administrative Code, Rule 65C-22, specifically Rule 65C-22.001 which outlines the requirements for the issuance of a license as follows:

       1. License.

          (a) A child care facility license is issued in the name of the owner, partnership, association, or corporation.

          
          

    4. Rule 65C-22.001, Florida Administrative Code, sets forth minimum required space per child, as follows:

       Physical Environment.

       1. Indoor Floor Space.

       (a) A child care facility that held a valid license on October 1, 1992, must have a minimum of 20 square feet of usable indoor floor space for each child. A child care facility that did not hold a valid license on October 1, 1992, and seeks regulatory approval to operate as a child

       care facility, must have a minimum of 35 square feet of usable indoor floor space for each child.

       
       

    5. Lastly, Rule 65C-22.001, Florida Administrative Code, sets forth the requirement for supervision:

    (5) Supervision.

    1. Direct supervision means watching and directing children's activities within the same room or designated outdoor play area and responding to each child's need. 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 care personnel shall remain responsible for the supervision of the children in care and capable of responding to emergencies, and are accountable for children at all times, which includes when children are separated from their groups.

    2. During nap time, supervision means

    sufficient staff in close proximity, within sight and hearing of all the children. All other staff to meet the required staff-to- children ratio shall be within the same building on the same floor and be readily accessible and available to be summoned to ensure the safety of the children.

    
    

32. The Department has failed to establish that any of the incidents described in the foregoing Findings of Fact, singly or taken together, demonstrate either gross misconduct and/or willful violation of the minimum child care standard within the meaning of the statutes and rules charged.

33. The Department has failed to establish by clear and convincing evidence that McCarthy was responsible for Sergio's escape. Instead, the evidence establishes that Cooper was

    appropriately assigned to look after him, and failed to perform her duty.

34. It might be argued that it would be wise policy not to permit a staffer to leave a day care center unless another individual had performed a head count. But there is no evidence that such a procedure is required either by law, rule, nor by a standard of care in place at Little Bears.

35. Moreover, the Department expressly disclaimed that its case is based upon a respondent superior theory. Instead, the Department contended, but failed to prove, that McCarthy was directly responsible for Sergio and neglected her duty to supervise him.

36. The Department argues that the March 19, 2001 incident was so serious that the Department could have revoked the license without a history of prior violations at the center, citing Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998). Because the evidence does not establish McCarthy's culpability for Sergio's escape, arguably the other charges are moot.

37. However, Coke is readily distinguishable. There, the court upheld the non-renewal of a child care license based upon one incident of an unexplained injury to a child in day care. Here, the injury has been explained, and the negligent party identified. McCarthy's misplaced trust in Cooper,

coupled with the incidents of July 11, 1999, and February 22, 2000, do not constitute clear and convincing evidence that McCarthy, after a long and unblemished career, should be deemed unfit to work in child care.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order dismissing the charges against Petitioner, Shanion R. McCarthy.

DONE AND ORDERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida.

________________________________ FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2001.

ENDNOTE

1/ This is the correct spelling of Petitioner's first name. The caption incorrectly uses the more traditional spelling.

COPIES FURNISHED:

Mark Dienstag, Esquire

21 Southeast First Avenue, Suite 800 Miami, Florida 33131

Rosemarie Rinaldi, Esquire Department of Children and Families

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

Virginia A. Daire, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

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.

Docket for Case No: 01-002603

Orders for Case No: 01-002603