STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

A GOLD STAR ACADEMY,

Respondent.

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) Case No. 11-0500

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on April 29, 2011, in Cocoa, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Department of Children and Families

400 West Robinson Street, Suite S-1129 Orlando, Florida 32801

For Respondent: Jamison Jessup, Qualified Representative Florida Education Advocate, Inc.

557 Noremac Avenue Deltona, Florida 32738

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's designation as a Gold Seal Quality Care Program provider should be revoked pursuant to section 402.281, Florida Statutes (2010).1/

PRELIMINARY STATEMENT

On October 21, 2010, Petitioner, Department of Children and Families (Department), served an Administrative Complaint on Respondent, A Gold Star Academy (Gold Star), stating that the Department intended to revoke Gold Star's designation as a Gold Seal Quality Care Program provider based on an alleged Class I violation within the meaning of section 402.281(3)(a). By letter dated November 17, 2010, Gold Star requested an administrative hearing.

The case was forwarded to the Division of Administrative Hearings on January 28, 2011, for assignment to an Administrative Law Judge. The case was originally assigned to Administrative Law Judge J.D. Parrish, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

At the final hearing, the Department called Verner Buchanan and Richard Forrester. Petitioner's Exhibits 1 through 6 were admitted in evidence. Gold Star called Christine Lepore, Donna Krinop, Andre Robinson, Khemwatti Kalikapersaud, and Angelina Kalikapersaud as its witnesses. Respondent's Exhibits 1

through 7 were admitted in evidence.

No transcript was ordered. The parties agreed to file proposed recommended orders within ten days of the final hearing. Both parties timely filed their Proposed Recommended

Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Gold Star is a child care facility which is licensed by the Brevard County Health Department, Brevard County, Florida (Brevard County), pursuant to section 402.308(4).

2. The Department designated Gold Star as a Gold Seal Quality Care Program provider. As a Gold Seal Quality Care Program provider, Gold Star receives certain benefits which include sales tax exemptions, increased reimbursement rates for children participating in school readiness, and participation in the Voluntary Prekindergarten. Additionally, the designation is a positive marketing tool.

3. In 2009, the Department sent a notice to providers who were designated as Gold Seal Quality Care Program providers, advising them that the Department would revoke designations of providers who had a Class I violation within a two-year period. The Department received an acknowledgement dated June 20, 2009, and signed by Donna Krinop, who was the director of Gold Star, acknowledging that Gold Star had received notice that the Department would revoke the designation of a provider who had a Class I violation within a two-year period.

4. Class I violations are the most serious in nature and pose an imminent threat to a child, which has resulted, or may

   
   

   have resulted, in death or serious harm to the health, safety, or well-being of a child. Fla. Admin. Code R. 65C-20.012(1)(d).

5. By letter dated September 15, 2010, Brevard County notified Gold Star that Gold Star was in violation of rule

   65C-22.001(5), by failing to adequately supervise children which resulted in a child obtaining and throwing scalding water on another child. The violation is a Class I violation. In addition to the incident with the scalding water, Brevard County noted that on an inspection conducted on June 30, 2010, the inspector noted that a maintenance worker was teaching

   four-year-old children and that after-school children were given a battery-operated leaf blower to blow off the sidewalk as a form of punishment. The letter also provided the following instructions for requesting an administrative hearing to contest the disciplinary action:

   WHEREFORE, pursuant to Section 402.310, Florida Statutes and Section Ordinance 26-70 thru 77 Brevard County Code, the Brevard County Health Department, Environmental Public Health Services is fining childcare license 07B881 $500.00. You are hereby notified that pursuant to Section 120.57, Florida Statutes, you are entitled to an administrative hearing. Please be advised that a hearing will not be automatically scheduled. In the event that you wish to contest the fine, you must submit a written request for an administrative hearing pursuant to Section 402.310(2), Florida Statutes. Environmental Public Health Services must receive your request for an administrative hearing within 15 days for

   
   

   [sic] receipt of the formal administrative complaint at the following address:

   
   

   Melissa L. Brock, R.E.H.P., Environmental Manager

   Environmental Public Health Services Brevard County Health Department Brevard County Government Center

   2725 Judge Fran Jamieson Way, Building A116 Viera, Florida 32940-6682

   
   

   Upon timely receipt of your written request, an administrative hearing to determine whether your license will be fined will be expeditiously scheduled. Failure to request a hearing in writing within 15 days of receipt of the administrative complaint shall be deemed a waiver of any right to a hearing under Section 120.57 Florida Statutes, and the administrative fine of your license will be final. Section 402.310(2), Florida Statutes. Payment is due at the time the fine becomes final.

   
   

   In the event you request an administrative hearing, you have the right to be represented by counsel, to take testimony, to call and cross-examine witnesses and to have a [sic] subpoenas or subpoenas duces tecum issued on your behalf, Rule

   28-106.212, Florida Administrative Code.

   
   

6. Donna Krinop wrote Ms. Brock on September 17, 2010, stating: "Nothing in this letter was true and we would like to meet with you to discuss this situation." Nothing in the letter indicated that Gold Star was seeking an administrative hearing.

7. A meeting was scheduled for September 28, 2010, for Gold Star to discuss the administrative action with Brevard County staff. By letter dated September 27, 2010, Gold Star advised Brevard County that Gold Star did not think that the

   
   

   findings in the administrative action letter were true, but that Gold Star was complying with corrective actions. Enclosed with the letter was a check for $500.00 and a list of Gold Star staff who had received refresher training on supervision.

8. On September 28, 2010, a meeting was held with

   
   

   Mr. Buchanan, who was an environmental supervisor for Brevard County, and Gold Star staff, including Ms. Krinop. Mr. Buchanan did not tell any Gold Star staff that if the fine was not paid that Gold Star would lose its license. The meeting consisted generally of Gold Star staff stating why they felt that the punishment was too harsh.

9. Ms. Krinop and Ms. Khemwatti Kalikapersaud contend that the letter that was sent by Gold Star on September 17, 2010, was meant as a request for an administrative hearing and that they thought that the meeting on September 28, 2010, was the due process hearing. Their testimony is not credited.

10. On October 21, 2010, the Department sent an Administrative Complaint to Gold Star stating that the Department intended to revoke Gold Star's designation as a Gold Seal Quality Care Program provider based on the Class I violation issued by Brevard County. The Administrative Complaint stated the following:

    IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING TO CONTEST THE DECISION. YOUR

    
    

    REQUEST FOR AN ADMINISTRATIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT WITHIN 21 DAYS OF YOUR RECEIPT OF THIS NOTICE. FAILURE TO REQUEST AN ADMINISTRATIVE HEARING WITHIN THE

    21 DAYS PROVIDED SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING.

    
    

11. By letter dated November 17, 2010, Ms. Krinop wrote to the Department to "request an administrative hearing to review the decision of the Health Department [Brevard County]." Gold Star admitted that the incident with the scalding water had occurred and stated:

    We are dismayed by this unfortunate incident and view it with the utmost seriousness.

    Further, we do not contest that it resulted in the minor injury of one child, having been unintentionally inflicted by another child. However, we believe that the Health Department may inadvertently be in possession of erroneous information concerning the matter and this has resulted in disproportionate punitive action against GSA [Gold Star].

    
    

    Specifically, we wish to contest:

    
    

    1. The extent of the injury as reported in the notification, which is cited as greater than that observed by the responding officer.

       
       

    2. The qualifications of the supervising staff, who is reported in the notification to be solely a maintenance man and unapproved to supervise, which is incorrect.

       
       

    3. A child was operating battery powered leaf blower as punishment, which is incorrect.

       
       

       Due to the fact that the incident did occur, GSA understands that the fine imposed by the

       
       

       Health Department is right and fair. However, due to the misunderstanding of facts as outlined above, we do not believe that the revocation of GSA's Gold Seal Quality Care Program Provider Designation is appropriate.

       
       

12. Gold Star did not state in its November 17, 2010, letter to the Department that Gold Star had requested an administrative hearing and that Brevard County had failed to give it an administrative hearing.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat.

14. The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern

    and Co., 670 So. 2d 932 (Fla. 1996).

    
    

15. Section 402.281(4) sets out the criteria that must be met in order to maintain a Gold Seal Quality Care designation and provides:

    1. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility, large family child care home, or family day care home must meet the following additional criteria:

       
       

       1. The child care provider must not have had any class I violations, as defined by rule, within the 2 years preceding its

          
          

          application for designation as a Gold Seal Quality Care provider. Commission of a class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class I violations for a period of 2 years.

          
          

       2. The child care provider must not have had three or more class II violations, as defined by rule, within the 2 years preceding its application for designation as a Gold Seal Quality Care provider. Commission of three or more class II violations within a 2-year period shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class II violations for a period of 1 year.

          
          

       3. The child care provider must not have been cited for the same class III violation, as defined by rule, three or more times within the 2 years preceding its application for designation as a Gold Seal Quality Care provider. Commission of the same class III violation three or more times during a

    2-year period shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class III violations for a period of 1 year.

    
    

16. Brevard County disciplined Gold Star for a Class I violation. Section 402.281(4) provides that the commission of a Class I violation is grounds for terminating a child care provider's designation as a Gold Seal Quality Care Program provider. As early as June 20, 2009, Gold Star was put on notice that a Class I violation would result in revocation of Gold Seal Quality Care Program designation.

    
    

17. Gold Star contends that it timely requested an administrative hearing on the administrative action imposing a

    $500 fine for a Class I violation and that Brevard County failed to give Gold Star an administrative hearing; therefore, the finding of a Class I violation is not final or valid. Such contention is without merit. The letter dated September 17, 2010, from Gold Star to Brevard County did not request an administrative hearing. The day before Gold Star was to meet with Brevard County staff to discuss the enforcement action, Gold Star wrote a letter to Brevard County stating that although it did not agree with Brevard County's findings, that Gold Star had taken corrective action, which included paying the $500 fine and having its staff take a refresher course on supervision.

18. When the Department issued the Administrative Complaint at issue, Gold Star wrote the Department specifically requesting an administrative hearing. It is clear from the request for a hearing in this case that Gold Star knew how to request an administrative hearing. Additionally, Gold Star did not dispute that an incident occurred at its facility involving scalding water being poured on one child by another child. The only thing that Gold Star felt that Brevard County did not consider in the incident was the amount of injury suffered by the child upon which the water was poured. Gold Star readily admitted that the $500 fine was right and fair. Apparently,

    
    

    Gold Star disputed that it was a Class I violation. There was no mention in the November 17, 2010, letter that Gold Star had requested an administrative hearing on Brevard County's enforcement action and that Brevard County had failed to give Gold Star a hearing.

19. Because Brevard County did not receive a request for an administrative hearing and Gold Star paid the administrative fine, the finding of a Class I violation became final. Gold Star committed a Class I violation. Having committed a Class I violation, Gold Star did not meet the criteria for maintaining a Gold Seal Quality Care Program designation, and its designation should be revoked.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding that Gold Star committed a Class I violation and revoking its designation as a Gold Seal Quality Care Program provider.

DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 11th day of May, 2011.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

David Wilkins, Secretary

Department of Children and Families Building 2, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, Acting General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

T. Shane DeBoard, Esquire Department of Children and Families

400 West Robinson Street, Suite S-1129 Orlando, Florida 32801

Jamison Jessup, Qualified Representative Florida Education Advocate, Inc.

557 Noremac Avenue Deltona, Florida 32738

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: 11-000500

Orders for Case No: 11-000500