STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

vs.

Petitioner,

Case No. 16-3708

KIMBERLY WRIGHT d/b/a LITTLE FEET ACADEMY,

Respondent.

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was conducted in this case on August 23, 2016, in Jacksonville, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings (“DOAH”). The parties were represented as set forth below.

APPEARANCES

For Petitioner: David Gregory Tucker, Esquire

Assistant General Counsel Department of Children and Families 5920 Arlington Expressway

Jacksonville, Florida 32231-0083

For Respondent: Kimberly Machell Wright, pro se

Little Feet Academy 2135 Rothbury Drive

Jacksonville, Florida 32221

STATEMENT OF THE ISSUE

The issue in this case is whether imposition of a fine in the amount of $100 on Respondent, Kimberly Wright, d/b/a Little Feet Academy, by Petitioner, Department of Children and Families (the “Department” or “DCF”), was appropriate.

PRELIMINARY STATEMENT

The Department issued an Administrative Complaint dated June 3, 2016, imposing a monetary fine of $100 against Respondent. The Respondent timely filed a request for formal administrative hearing to contest the Department’s decision.

At the final hearing, the Department called three witnesses: Meike Rice, family service counselor supervisor; Mary Gil, family service counselor; and Officer G.W. Bryant, Jacksonville Police Department. Exhibits A, B and C offered into evidence by the Department were accepted. Kimberly Wright testified on her own behalf of and offered one composite exhibit into evidence; it was accepted.

By rule, the parties are given 10 days from the date the transcript is filed at DOAH to submit proposed recommended orders (PROs). The Transcript was filed on September 15, 2016. Each party timely filed a PRO and each party’s PRO was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

(The following Findings of Fact were established through evidence presented at final hearing.)

1. The Department is responsible for licensing and monitoring, among other entities and facilities, “large family child care homes.” Little Feet Academy (“Little Feet”) is such a facility.

2. Little Feet is operated by Kimberly Wright and is located, pursuant to its license, at 2135 Rothbury Drive, Jacksonville, Florida (the “Rothbury Site”).

3. On May 11, 2016, DCF received a complaint from the parent of a child under Ms. Wright’s care at Little Feet. The complaint alleged that the Rothbury Site was extremely hot, causing the child to suffer. DCF sent a family service counselor, Mary Gil, to investigate the complaint allegation.

4. Ms. Gil arrived at the home with the intention of using a thermometer to measure the temperature inside the home. By rule, large family childcare homes must keep the temperature between 65 degrees and 82 degrees Fahrenheit. When she walked into the front door, she found water on the floor in the living room and bedroom. A pipe had apparently burst, causing the flooding. (The temperature, incidentally, was 81 degrees Fahrenheit, within the prescribed range.)

   
   

5. Ms. Gil advised Ms. Wright that the water on the floor constituted a hazard which put the children at risk. She told Ms. Wright that the children would have to leave the home until the problem was rectified. Ms. Wright began calling the parents of the children, explaining that the children could not remain at the facility until it had been repaired.

6. Initially, Ms. Wright told the parents they could take the children to 8321 Santman Court (the “Santman Court Site”), a private residence owned by Ms. Wright. Her intent was to have her staff watch the children at that site until the leak was repaired. Ms. Gil heard her conversing with some of the parents and advised Ms. Wright that moving the children to a different site would not be allowed under her license. Ms. Wright then attempted to contact all the parents to tell them that they could not take their children to the Santman Court Site after all.

7. Ms. Wright told the four employees working for her that they could not return to work until the plumbing repairs had been completed. She told them that the plan to use the Santman Court Site would violate licensure rules, so that was not an option. All of the employees, including Ms. Wise (who was already working another job), left the Rothbury Site at that time.

   
   

8. Parents of the children staying at Little Feet were not given an option for temporary childcare by Ms. Wright. She simply told them they could return when Little Feet re-opened.

9. On the next day, May 12, 2016, a parent of one of the children called DCF with another complaint. The parent said that apparently Ms. Wright was using the Santman Court Site to care for the Little Feet children. Again DCF sent Ms. Gil to investigate.

10. Upon arrival at the Santman Court Site, Ms. Gil knocked on the door, but no one answered. She could hear the sound of children inside, but no one would come to the door. She knocked for a while, then called her supervisor, Ms. Rice,

    for advice and assistance. Ms. Rice told her to continue trying to get into the home while she, Ms. Rice, drove to the site.

11. At some point, Ms. Rice contacted the Jacksonville Police Department, asking for assistance at the Santman Court Site. She and Officer Bryant from the Jacksonville Sheriff’s Office arrived at the site around the same time.

12. About the time Ms. Rice arrived at Santman Court, someone inside the home finally answered the door. The person who answered was Sylvia Wise, an employee of Little Feet.

    Ms. Wise allowed Ms. Gil, Ms. Rice and Officer Bryant into the home.

    
    

13. Inside, they found what appeared to be an abandoned home, i.e., no furniture for normal living. There were some items used for childcare inside the home, such as small tables and chairs, pack-n-play cribs, and other similar items. Ms. Gil thought she recognized some of the items being from Little Feet. Ms. Wright would later acknowledge that the items were from Little Feet, but that was because she had planned to use that home as an alternative to the Rothbury Site (until she found out she could not do so). Ms. Wise was watching eight children from six different families at the Santman Court Site.

14. When questioned, Ms. Wise denied working for

    
    

    Ms. Wright or Little Feet. She said she had agreed to babysit the children at the Santman Court Site. She said she had rented the home from Ms. Wright as a place for her aunt to live when she moved to Jacksonville. Ms. Wright confirmed that Ms. Wise had rented the home, but the agreement to rent was made well before the leak occurred at the Rothbury Site.

15. One of the DCF family counselors contacted Ms. Wright and advised her to come to the Santman Court Site as quickly as possible. Ms. Wright said there were plumbers working on the leak, but she would get there as soon as she could. She arrived a short time later.

16. DCF informed Ms. Wise that she was in violation of rules concerning childcare and would have to call the parents to

    
    

    pick up their children. According to Ms. Rice, it is illegal to care for children from two or more families on a regular basis and receive compensation. Ms. Wright was told the same thing when she arrived. It was upon her arrival at the Santman Court Site that Ms. Wright first found out that some of the Little Feet children were there.

17. DCF waited at the Santman Court Site until there were only two children remaining. Inasmuch as the two were siblings, Ms. Wise was allowed to babysit them without violating the aforementioned rules.

18. While at the Santman Court Site, Ms. Rice attempted to convince the police officer to write up a report on the violation. However, because it was a civil, administrative matter, he declined to do so. Ms. Wright believed Ms. Rice’s behavior showed that she was overly aggressive and “had it in for her.” Ultimately, no report was written by Officer Bryant.

19. Ms. Gil said Ms. Wise was receiving compensation from the parents for the care provided to children at the Santman Court Site. There is no competent evidence to support that allegation as Ms. Wise did not appear as a witness at final hearing. Ms. Wright credibly testified that she, personally, did not receive any compensation for care provided on that day, May 12, 2016.

    
    

20. Ms. Wright produced 13 sworn statements from parents of the Little Feet children. (Counsel for DCF acknowledged the statements were hearsay, but did not object to their introduction into evidence at the final hearing.) The gist of the statements was that Ms. Wright advised the parents of the temporary closure of Little Feet and that she could not watch their children until the leak issue was resolved. The facts in those statements are corroborated by Ms. Wright’s testimony.

21. There is no persuasive evidence that Ms. Wright attempted to circumvent licensure rules by having children stay at the Santman Court Site while the Rothbury Site was being repaired. In fact, the uncontroverted testimony was that

    Ms. Wright attempted to tell the children’s parents that the Santman Court Site could not be used.

22. The Department seeks to impose a fine of $100 against Little Feet, representing one day of illegal childcare at the Santman Court Site by Ms. Wise. The fine was assessed against Ms. Wright and Little Feet because Ms. Wright owns the Santman Court Site. However, Ms. Wise apparently had a leasehold interest in the property on the day in question. Why she, rather than Ms. Wright, was not sanctioned is not clear.1/

23. It is clear that the possibly illegal childcare lasted a single day, i.e., it was not done on a “regular” basis.

    
    

    However, it is reasonable that DCF believed the illegal childcare could have continued absent their intervention.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over this matter pursuant to section 120.57, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2016 codification.

25. In cases where a state agency alleges that a licensee engaged in wrongdoing, the burden is on the Department to prove the wrongdoing. Dep’t. of Banking and Fin. v. Osborne Stern and Co., 670 So. 2d 932, 934 (Fla. 1996). Factual findings based on

    record evidence must be made indicating how the alleged conduct violates the statutes or rules or otherwise justifies the proposed sanctions. Mayes v. Dep’t. of Child. and Fam. Servs., 801 So. 2d 980, 982 (Fla. 1st DCA 2001).

26. The standard of proof in this case is clear and convincing evidence because the Department is seeking to discipline Ms. Wright and/or Little Feet and take action detrimental to Ms. Wright’s license, thus making the matter penal in nature. Ferris v. Turlington, 510 So. 2d 292 (Fla.

    1987).

    
    

27. The clear and convincing evidence standard is greater than the preponderance of the evidence standard used in most

    
    

    administrative proceedings. The clear and convincing standard is quite stringent. It has been described as follows:

    [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.

    
    

    Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

28. The Department is authorized by section 402.310, Florida Statutes, to impose sanctions against a licensed large family childcare home which violates provisions of licensing standards. Those licensing standards are found in section

    402.310 through 402.319 and Florida Administrative Code Rule 65C-20.

29. Section 402.310 states in pertinent part:

    
    

    (1)(a) The department or local licensing agency may administer any of the following disciplinary sanctions for a violation of any provision of ss. 402.301-402.319, or the rules adopted thereunder:

    
    

    1. Impose an administrative fine not to exceed $100 per violation, per day . . . .

       
       

30. Section 402.312 states in pertinent part:

    
    

    (1)(a) The operation of a . . . large family child care home without a license is prohibited . . . .

    
    

    * * *

    
    

    (3) The department or local licensing agency may impose an administrative fine on any . . . large family child care home

    operating without a license or registration, consistent with the provisions of

    s. 402.310.

    
    

31. The Department contends Kimberly Wright, d/b/a Little Feet Academy, was operating a childcare facility at 8321 Santman Court, Jacksonville, Florida, on May 12, 2016. However, the facts show that someone other than Ms. Wright had current ownership of that property on the day in question (Ms. Wise via leasehold interest). Further, Ms. Wright was unaware of the care being provided to children at that site on that date until notified by DCF. Therefore, the Department failed to meet its burden of proof.

32. Even if the standard of proof had been preponderance of the evidence, there was no competent evidence that Ms. Wright was operating a large family child care home at the Santman Site. The evidence is spotty at best and strongly suggests that Ms. Wise, not Ms. Wright, was attempting to care for the children at that site. There is also no evidence whatsoever

that anyone was compensated for the one-half day of care provided to the children at the site.

RECOMMENDATION

Upon consideration of the evidence and oral testimony presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Children and Families, finding that there is no basis for imposing a monetary sanction of $100 against Respondent, Kimberly Wright, d/b/a Little Feet Academy.

DONE AND ENTERED this 10th day of October, 2016 in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 10th day of October, 2016.

ENDNOTE

1/ It must be noted that for a fine of $100, the undersigned Administrative Law Judge incurred travel expenses in excess of $200. Further, two DCF employees and a police officer took

time from their regular duties to testify at the final hearing. A transcript of the final hearing was ordered, further increasing the costs of this matter to the State of Florida.

Even if the State had prevailed in this matter, it would not have been economically reasonable to pursue the matter. In the future, perhaps another resolution could be found.

COPIES FURNISHED:

Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway

Jacksonville, Florida 32231-0083 (eServed)

Kimberly Machell Wright Little Feet Academy 2135 Rothbury Drive

Jacksonville, Florida 32221 (eServed)

Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Mike Carroll, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

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: 16-003708

Orders for Case No: 16-003708