STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

MAGELLAN CHRISTIAN ACADEMIES, LLC,

Respondent.

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) Case No. 12-1473

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RECOMMENDED ORDER

On July 16, 2012, a formal administrative hearing in this case was held via video teleconference at sites in Jacksonville and Tallahassee, Florida, before Lawrence P. Stevenson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: David Gregory Tucker, Esquire

Department of Children and Families 5920 Arlington Expressway

Post Office Box 2417 Jacksonville, Florida 32231

For Respondent: Thomas A. and Lorrie Blitch, pro se

Magellan Christian Academies, LLC Suite 200

4337 Pablo Oaks Court Jacksonville, Florida 32224

STATEMENT OF THE ISSUE

At issue is whether the Respondent committed the violation alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 24, 2012, the Department of Children and Families (the "Department") filed a one-count Administrative Complaint (the "Complaint") against Magellan Christian Academies, LLC ("Magellan"). The Complaint was received by Magellan on March 6, 2012. The Complaint stated that during a complaint investigation on December 12, 2011, a Department licensing counselor determined that direct supervision of the children in care was inadequate, based on the following factual allegations:

A two (2) year old child, K.J., was allowed to climb on top of a kitchen play-set, from which he fell and injured himself. The teacher in the two (2) year old classroom was present, however, she was too distracted to tell the child to dismount the play-set.

K.J. was on top of the play-set for approximately one minute and nineteen seconds (1:19) before he fell. If supervision had been adequate, this accident would not have occurred.

The Complaint stated that this was a Class 2 violation pursuant to Florida Administrative Code Rule 65C-22.001(5)(a). The Complaint stated that Magellan had been cited for the same Class 2 violation on September 12, 2011. Finally, the Complaint

stated that, pursuant to the Child Care Facilities Standards Classification Summary, CF-FSP Form 5316, Item #5--Supervision, the fine for this second Class 2 violation would be $50.00.1/

On or about March 23, 2012, Magellan filed with the Department a letter that challenged the factual allegations of the Complaint and requested a formal administrative hearing. On April 19, 2012, the Department forwarded Magellan's request to the Division of Administrative Hearings for the scheduling and conduct of a formal hearing. The case was set for hearing on July 16, 2012, on which date it convened and was completed.

At the hearing, the Department presented the testimony of Walter Giannone, a child care licensing counselor for the Department. Respondent presented the testimony of Sarah Rahman, Teresa Sanchez, and Marilyn Potts, all employees of Magellan.

Neither party offered any exhibits into evidence.

The transcript of the hearing was filed at the Division of Administrative Hearings on August 8, 2012. The Department timely filed its Proposed Recommended Order on August 8, 2012. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. The Department is authorized to regulate child care facilities pursuant to sections 402.301-402.319, Florida Statutes.2/ Section 402.310 authorizes the Department to take

   
   

   disciplinary action against child care facilities for violations of sections 402.301-402.319.

2. Magellan is a child care facility operating pursuant to License Number C04DU0288. The facility is located at 10550 Deerwood Park Boulevard, #704, Jacksonville, Florida.

3. Walter Giannone is a child care licensing counselor for the Department. He has worked for the Department for 24 years, all in the area of child care licensing. Mr. Giannone was the licensing counselor assigned to assist Magellan when the company was obtaining its first license to operate a day care roughly a decade ago. He is very familiar with Magellan and its facilities.

4. For the past two years, Mr. Giannone has been assigned to inspect the Magellan daycare. He testified that Magellan's inspections have been uniformly satisfactory.

5. On Friday, December 9, 2011, Mr. Giannone received a complaint that K.J., a two-year-old boy, was injured when he fell from a piece of play equipment at Magellan. The complaint was made by K.J.'s mother, who alleged that the child was alone in the classroom for around seven minutes, that no one came to his immediate assistance when he fell, that 911 was not called and the parents were not immediately notified.

6. On Monday morning, December 12, 2011, Mr. Giannone conducted an on-site investigation of the incident at Magellan.

   
   

   He interviewed several people, including the facility's director, Marilyn Potts. Ms. Potts gave Mr. Giannone her report of the incident and assured him that it was not nearly as severe as the parent's complaint alleged.

7. Mr. Giannone viewed Magellan's security camera video for December 9, 2011. The tape, which had no audio, showed a classroom designated for two-year-olds in which there were eight children and one teacher. The time was around 5:30 p.m., which was parent pick-up time preliminary to Magellan's 6:00 p.m. closure. Most of the children were "milling around the room."

8. At around 5:37 p.m., the teacher placed a female child on the changing table and began changing the child's diaper.

   The mother of the child was visible in the video, talking to the teacher as the teacher changed her child's diaper. The teacher was facing the classroom and could see the other children in the room.

9. At about 5:39 p.m., K.J. climbed up onto a play stove in the classroom. A few seconds later he was joined by a little girl, who quickly climbed down. Mr. Giannone stated that K.J. was dancing around on top of the stove and appeared to be having fun when he fell from the stove. Mr. Giannone testified that

   K.J. was on top of the stove for one minute and 19 seconds before he fell.

   
   

10. The teacher immediately ran to K.J. The mother took over at the changing table. Mr. Giannone testified that K.J. did not move for a moment or two. The teacher carried K.J. out of the room. About four minutes later, K.J. was brought back into the room and appeared to be fine. K.J.'s mother later took him to the emergency room, where he was pronounced in good health save for a sinus infection.

11. While agreeing that the incident was not nearly as serious as the parent's complaint made it seem, Mr. Giannone still found a violation of the supervision requirement. Because there was no audio on the tape, Mr. Giannone took the teacher's word that she told the child to get down, but he found this insufficient. The child was on top of the play stove for over one minute, yet the teacher did not physically intervene to take him down and did not call for assistance.

12. Mr. Giannone concluded that this was a direct supervision violation. He determined that it was a Class 2 violation, meaning that it could be anticipated to pose a threat to the health, safety or well-being of a child, but that the threat was not imminent.

13. The teacher, Sarah Rahman, testified that she was at the changing table when K.J. began climbing on the play stove. She called out to him to stop and he obeyed, but started climbing again as soon as she looked down to change the diaper

    
    

    of the child on the changing table. She called out again but

    
    

    K.J. would not come down.

    
    

14. Ms. Rahman stated that she could not physically intervene because she could not leave the other child alone on the changing table. Ms. Rahman did not adequately explain why she could not have left the child with her mother. She testified that the mother was not present when K.J. began to climb on the stove, but conceded that the mother was present no later than when Ms. Rahman called out to K.J. for the second time. Ms. Rahman further conceded that she could have prevented K.J.'s fall if she had let the mother take care of her own child on the changing table.

15. Ms. Rahman testified that K.J. had a history of climbing on this play equipment, and that it had occurred to her that the equipment might pose a fall risk.

16. Magellan has an intercom system that allows teachers to call for assistance from the front office. After K.J. fell, Ms. Rahman used the intercom to call Teresa Sanchez, a fellow employee who was at the desk in the front lobby greeting parents as they arrived to pick up their children. Ms. Sanchez immediately went back to assist.

17. Ms. Sanchez testified that the purpose of the intercom is to allow teachers to push a button and quickly get assistance

    
    

    in the classroom. However, Ms. Rahman failed to ask for assistance until after K.J. fell off the play stove.

18. Magellan presented evidence establishing that K.J. was an unruly, disobedient child. He was very aggressive and was known to slap, kick and spit at his teachers. His mother told school personnel that K.J. climbed on the furniture at home and that she could not control him. At the time of the incident, Magellan was in the process of expelling K.J. for his behavior. Marilyn Potts, Magellan's director, testified that she could not assign a teacher to follow one child around to be sure he does not hurt himself.

19. None of these factors serves to excuse Magellan for this incident. Ms. Rahman testified that whether a child is well behaved has no bearing on her responsibility to ensure the child's safety. The foreknowledge that K.J. was prone to climb on the equipment and was not inclined to obey verbal instructions was all the more reason for Ms. Rahman to intervene physically before the child fell.

20. Magellan argued that Ms. Rahman could not be expected to rush over and pull K.J. off the play stove because Department rules require a 30-second hand wash after the changing of a diaper. This argument is unavailing. Ms. Rahman rushed to K.J. after he fell without bothering to wash her hands. Given the

    
    

    exigent circumstances, Ms. Rahman could as well have gone to K.J.'s assistance before he fell.

21. Finally, Magellan argued that the matter should have been dropped when K.J.'s mother subsequently attempted to withdraw her complaint. Mr. Giannone credibly testified that dropping the matter was not an option. Once a complaint is filed, the Department is required to investigate and determine the facts of the situation regardless of whether the complainant has a subsequent change of heart.

22. Though in this instance the complainant's change of heart was motivated by sincere regret at exaggerating the seriousness of the incident, in other cases a complaint might be withdrawn because the complainant has been intimidated.

    Mr. Giannone testified that it was important for child safety that the Department follow the facts of each case rather than the whims of the complainant.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

24. The Department has the burden of establishing the grounds for discipline against Respondent's license by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So.

    
    

    2d 292 (Fla. 1987); Coke v. Dep't of Child. & Fam. Servs., 704 So. 2d 726 (Fla. 5th DCA 1998).

25. In Evans Packing Co. v. Dep't of Agric. and Consumer Servs., 550 So. 2d 112, 116, n.5 (Fla. 1st DCA 1989), the Court defined clear and convincing evidence as follows:

    Clear 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 of 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).

    
    

26. Judge Sharp, in her dissenting opinion in Walker v.

    
    

    Dep't of Bus. and Prof'l Reg., 705 So. 2d 652, 655 (Fla. 5th DCA 1998) (Sharp, J., dissenting), reviewed recent pronouncements on clear and convincing evidence:

    [C]lear and convincing evidence requires more proof than preponderance of evidence, but less than beyond a reasonable doubt. In re Inquiry Concerning a Judge re Graziano, 696 So. 2d 744 (Fla. 1997). It is an intermediate level of proof that entails both qualitative and quantative [sic] elements. In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995), cert.

    denied, 516 U.S. 1051, 116 S. Ct. 719, 133

    L. Ed. 2d 672 (1996). The sum total of evidence must be sufficient to convince the trier of fact without any hesitancy. Id. It must produce in the mind of the factfinder a firm belief or conviction as to

    
    

    the truth of the allegations sought to be established. Inquiry Concerning Davey, 645 So. 2d 398, 404 (Fla. 1994).

    
    

27. At all times material to this case, Respondent was a provider of child care, pursuant to section 402.302, Florida Statutes, which provides the following relevant definition:

    1. "Child care" means the care, protection, and supervision of a child, for a period of less than 24 hours a day on a regular basis, which supplements parental care, enrichment, and health supervision for the child, in accordance with his or her individual needs, and for which a payment, fee, or grant is made for care.

       
       

    2. "Child care facility" includes any child care center or child care arrangement which provides child care for more than five children unrelated to the operator and which receives a payment, fee, or grant for any of the children receiving care, wherever operated, and whether or not operated for

       profit. . . .

       
       

28. Section 402.305(1), Florida Statutes, directs the Department to "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."

29. Section 402.310(1), Florida Statutes, provides, in relevant part:

    1. The department shall adopt rules to:

       
       

       1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee

          
          

          or registrant on probation status for violations of ss. 402.301-402.319.

          
          

       2. Establish a uniform system of procedures to impose disciplinary sanctions for violations of ss. 402.301-402.319. The uniform system of procedures must provide for the consistent application of disciplinary actions across districts and a progressively increasing level of penalties from pre-disciplinary actions, such as efforts to assist licensees or registrants to correct the statutory or regulatory violations, and to severe disciplinary sanctions for actions that jeopardize the health and safety of children, such as for the deliberate misuse of medications. . . .

          
          

30. Pursuant to section 402.310(1)(c), the Department has promulgated Florida Administrative Code Chapter 65C-22, "Child Care Standards." Rule 65C-22.001(5)(a) provides, in relevant part:

Direct supervision means watching and directing children's activities within the same room or designated outdoor play area, and responding 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....

31. Rule 65C-22.010(1)(d) provides:

1. "Violation" means a finding of noncompliance by the department or local licensing authority of a licensing standard.

1. "Class I Violation" is an incident of noncompliance with a Class I standard as described on CF-FSP Form 5316, March 2009. Child Care Facility Standards Classification Summary, which is incorporated by reference. A copy of the CF-FSP Form 5316 may be

   
   

   obtained from the department’s website at www.myflorida.com/childcare. Class I violations are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well-being of a child.

   
   

2. "Class II Violation" is the second or subsequent incident of noncompliance with an individual Class II standard as described on CF-FSP Form 5316. Class II violations are 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.

   
   

3. "Class III Violation" is the third or subsequent incident of noncompliance with an individual Class III standard as described on CF-FSP Form 5316. Class III violations are less serious in nature than either Class I or Class II violations, and pose a low potential for harm to children.

   
   

4. "Technical Support Violations" are the first or second occurrence of noncompliance of an individual Class III standard or the first occurrence of noncompliance of an individual Class II standard.

1. In this case, the Department charged Magellan with a Class 2 violation for inadequate direct supervision of K.J. that led to his fall from a piece of play equipment in the classroom. This incident would be Magellan's second Class 2 violation.

2. The operators of child care facilities, like teachers and schools generally, are responsible for properly supervising their students but "are not insurers of the students' safety,

nor are they strictly liable for injuries to students." La Petite Academy, Inc. v. Nassef, 674 So. 2d 181, 182 (Fla. 2nd DCA 1996). See also Dep't of Child. & Fam. Servs. v. St.

Michael's Academy, Inc., DOAH Case No. 07-1082 (DOAH Oct. 11, 2007) (discussion and citations at ¶ 27).

1. As one court observed in a tort suit brought against a day care by the parent of an injured child, "some accidents occur without the attachment of liability on others." Rodriguez v. Discovery Years, Inc., 745 So. 2d 1148, 1149 (Fla. 3d DCA 1999). Rodriguez involved a six-year-old child's finger being caught in a bathroom doorjamb while the teacher was helping other students with their work. The court emphasized that the teacher could not be expected to stand watch over the bathroom door at all times and that the incident occurred in the blink of an eye.

2. In the instant case, K.J. was on top of the play stove for well over one minute in plain sight of Ms. Rahman, who had more than enough time to react in an effective manner.

   Ms. Rahman knew that K.J. was prone to climb this piece of play equipment and had thought the equipment might pose a hazard to

   K.J. Prevention of such clearly foreseeable injuries is a basic reason for the direct supervision requirement, and the evidence established that Magellan failed to exercise proper supervision in this isolated incident.

   
   

3. The Department has established the allegations of the Complaint by clear and convincing evidence. The inadequate supervision in this matter constituted a Class 2 violation as specified in CF-FSP Form 5316.

4. For this Class 2 violation, the Department should assess a fine of $50.00, pursuant to Florida Administrative Code

Rule 65C-22.010(2)(e)2.b.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding that Respondent provided inadequate supervision in violation of rule 65c-22.001 (5)(a), imposing a fine of $50.00 upon Magellan Christian Academies,

LLC.

DONE AND ENTERED this 23rd day of August, 2012, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 23rd day of August, 2012.

ENDNOTES

1/ Florida Administrative Code Rule 65C-22.010(1)(d) employs Roman numerals in its definitions of "Class I," "Class II," and "Class III" violations. In CF-FSP Form 5316, as well as the Complaint and other filings in this proceeding, the Department uses Arabic numerals. This Recommended Order will use Arabic numerals, except when quoting the cited rule.

2/ All references are to the 2011 edition of the Florida Statutes.

COPIES FURNISHED:

David Gregory Tucker, Esquire 5920 Arlington Expressway Post Office Box 2417 Jacksonville, Florida 32211 david_tucker@dcf.state.fl.us

Thomas A. Blitch

Magellen Christian Academies, LLC Suite 200

4337 Pablo Oaks Court Jacksonville, Florida 32224

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 gregory_venz@dcf.state.fl.us

David Wilkins, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 david_wilkins@dcf.state.fl.us

Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 drew_parker@dcf.state.fl.us

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: 12-001473

Orders for Case No: 12-001473