STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

1-2-3 STEP BY STEP, LLC,

Respondent.

/

Case No. 16-5971

RECOMMENDED ORDER

D. R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted a hearing in this case on January 12, 2017, by video teleconferencing at sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: T. Shane DeBoard, Esquire

Brian Christopher Meola, Esquire Department of Children and

Families Suite S-1129

400 West Robinson Street Tallahassee, Florida 32801-1707

For Respondent: Maria T. Navas y Garcia, pro se

1-2-3 Step by Step, LLC 5600 Old Cheney Highway

Orlando, Florida 32807-1924 STATEMENT OF THE ISSUE

The issue is whether to deny Respondent's application to renew its child care facility license and impose an

administrative fine for the reasons stated in the Department's letter dated September 16, 2016.

PRELIMINARY STATEMENT

By letter dated September 16, 2016, the Department notified Respondent's owner, Maria T. Navas y Garcia, that her application to renew a child care facility license was denied.

The letter further informed Ms. Garcia that the Department intended to impose an administrative fine in the amount of

$1,565.00 for violations of Department rules and relevant statutes observed during inspections of her facility.

Respondent timely requested a hearing and the matter was transmitted by the Department to DOAH requesting that a formal hearing be conducted.

At the final hearing, the Department presented the testimony of four witnesses. Department Exhibits 1 through 8 were accepted in evidence. With the aid of an interpreter,1/ Ms. Garcia testified on her own behalf and presented the testimony of six witnesses, including her husband.

A two-volume Transcript of the hearing has been prepared. The parties submitted proposed recommended orders (PROs), which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. Garcia operated a child care facility at 5600 Old Cheney Highway, Orlando, for almost two years. A probationary license expired on September 21, 2016. This proceeding concerns Ms. Garcia's application for renewal of her license.

2. The Department has regulatory authority over the licensing of child care facilities. To ensure compliance with regulations, the Department conducts periodic inspections of licensed facilities. Unless violations are observed during an inspection, the Department's Orlando office annually conducts two routine and one license renewal inspection of each of the

   395 licensed facilities in Orange and Seminole Counties. If a license is placed on probation because of violations, inspections are made at least once a month during the probationary period to ensure the deficiencies are corrected.

3. Violations by a licensee of Department rules or a statute are treated as Class 1, 2, or 3 violations. A Class 1 violation is the most serious, as it "pose[s] 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." Fla. Admin. Code R. 65C-22.010(1)(d). For example, it is a Class 1 violation for a facility operator to allow unsupervised individuals who have no current background screening to be with children. This is because all child care

   
   

   personnel must have a current Level 2 background screening performed before they begin work in the facility. See Fla. Admin. Code R. 65C-22.006(4)(d)1.

4. In 2015, Respondent's facility was inspected on at least four occasions: January 13, March 20, May 18, and

   August 11. On each occasion, violations of Department rules and relevant statutes were observed. Because the first three inspections were performed by a non-Spanish speaking counselor, Ms. Garcia requested that her facility be inspected by a counselor who spoke Spanish. In June 2015, the Department assigned Roy Garcia (no relation to Ms. Garcia) to perform future inspections, as he is bi-lingual. Later, Ms. Garcia expressed her dissatisfaction with Roy Garcia as well.

5. On January 15, 2016, Roy Garcia conducted an inspection of Respondent's facility. Based on violations observed during the inspection, on February 19, 2016, the Department issued an Administrative Complaint seeking to impose a $270.00 fine. See

   Dep't Ex. 2. The Administrative Complaint cited the following violations observed during the inspection:

   1. Two violations of sections 402.302(3) and (15) and 402.305(2) and Florida Administrative Code Rule 62C-22.006(4)(d) by failing to perform required background screening for two employees.

      
      

   2. Two violations of rule 65C-22.006(d) and

      (e) by failing to have background screening documents in the staff files.

      
      

   3. Three violations of the staff/ratio rule, as required by section 402.305(3) and (4) and rule 65C-22.001(4).

      
      

   4. Two violations of section 402.302(3) and rule 65C-22.001(5) by allowing a volunteer to supervise children without a qualified employee being present.

      
      

   5. Four violations of rule 65C-22.006(2) by failing to have student health examinations on file.

      
      

   6. Four violations of rule 65C-22.006(2) by failing to have required student immunization records on file.

      
      

6. At hearing, Ms. Garcia took the position that the charges were not warranted. However, in April 2016, she paid the $270.00 fine. Even though the Department informed her that she could request a hearing, a request was not filed. Therefore, the agency action became final.

7. On April 29, 2016, Roy Garcia conducted another inspection of the facility. Based on violations observed during the inspection, on June 30, 2016, the Department issued an Administrative Complaint seeking to impose a $125.00 fine and to convert her annual license to probationary status, given the number of recurring violations during the preceding year. See Dep't Ex. 3. The Administrative Complaint cited the following violations observed during the inspection:

   1. Three violations of section 402.305(3) and (4) and rule 65C-22.001(4) by failing to

      
      

      maintain a ratio of two staff personnel for each five infants under one year of age.

      
      

   2. One violation of rules 65C-22.006 and 65C-22.010 for failing to have background screening documents and employment history checks in the facility files.

      
      

8. At hearing, Ms. Garcia disagreed with the merits of these charges. However, in August 2016, she paid a $125.00 fine. Even though the Department informed her she could request a hearing to contest the charges, a request was not filed. Therefore, the agency action became final.

9. A probation-status license was issued on July 31, 2016, with an expiration date of September 21, 2016, which coincided with the date on which her original annual license expired. See

   Dep't Ex. 4. A probation-status license is issued for a short period of time during which the licensee must come back into compliance. See § 402.310(1)(a)2., Fla. Stat.

10. On August 4, 2016, Ms. Garcia filed an application for renewal of her license.

11. Because the license was on probation, follow-up inspections of the facility were conducted by Roy Garcia on August 26, 29, 30, and 31, 2016. Multiple inspections were conducted because he believed the safety of the children was at risk. Although Ms. Garcia contends these inspections constituted an "abuse of authority," the Department routinely

    
    

    performs follow-up inspections if a facility's license is on probation.

12. Multiple violations were observed during these inspections. See Dep't Ex. 1. They included the following:

    1. Four Class I violations of section 402.305(2)(a) by allowing unscreened individuals to be left alone to supervise children in the facility's care. These violations call for a fine of $400.00, or

       $100.00 per violation.

       
       

    2. Three Class 2 violations of rule 65C- 22.002(3)(a) by failing to maintain 20 or

       35 square feet per child in areas occupied by children. These violations call for a fine of $180.00, or $60.00 per violation.

       
       

    3. Three Class 2 violations of section 402.305(4) and rule 65C-22.001(4)(a) and (b) by failing to maintain a sufficient staff to children ratio. These violations call for a fine of $300.00, or $100.00 per violation.

       
       

    4. Two Class 2 violations of rule 65C- 22.006(4)(d)1. by failing to have Level 2 background screening documentation on file. These violations call for a fine of $150.00, or $75.00 per violation.

       
       

    5. Two Class 2 violations of rule 65C- 22.006(4)(d) by failing to have employee CF- FSP Form 5131 on file. These violations call for a fine of $150.00, or $75.00 per violation.

       
       

    6. Two Class 2 violations of rule 65C- 22.006(4)(d)2. by failing to have employment history checks on file. These violations call for a fine of $150.00, or $75.00 per violation.

       
       

    7. One Class 2 violation of rule 65C- 22.003(2)(a) for a facility employee having

       
       

       not completed the 40-clock-hour Introductory Child Care Training. This violation calls for a fine of $75.00.

       
       

    8. One Class 3 violation of rule 65C- 22.006(2)(a) and (d) by failing to have on file student health examinations for all children enrolled in the facility for at least 30 days. This violation calls for a fine of $40.00.

       
       

    9. One Class 3 violation of rule 65C- 22.006(2)(c) and (d) by failing to have on file immunization records for all children enrolled in the facility for at least 30 days. This violation calls for a fine of

       $40.00.

       
       

13. The Department's letter of September 16, 2016, proposes to impose an administrative fine in the amount of

    $1,565.00. See § 402.310(1)(a)1., Fla. Stat. Ms. Garcia did

    
    

    not challenge the amount or manner in which the fine was calculated. Rather, she contends the charges were not justified and therefore no fine should be imposed. However, by clear and convincing evidence, the Department has proven the allegations described in its letter.

14. After each inspection, Roy Garcia explained the nature of each violation and how it must be corrected in order to comply with Department rules. Despite his efforts to help

    Ms. Garcia, repeat violations were observed.

    
    

15. Unscreened individuals were supervising the children on two of the four days. Therefore, it was necessary for

    Roy Garcia to call the parents and ask that they come to the

    
    

    facility and pick up their children. After observing staff ratio violations on August 29, Roy Garcia returned the next day and observed the same violation. He also observed unsupervised volunteers alone with children three times (August 29, 30,

    and 31) during the same week.2/

    
    

16. When Roy Garcia asked Ms. Garcia why she was not following his instructions, she would argue with him, deny that any violation occurred, and contend he was out to shut her down and discriminate against her because she was an "entrepreneurial woman."

17. While conceding that she made "mistakes," Ms. Garcia contended Roy Garcia was harassing her and simply trying to find violations when he inspected the facility. She also contends the violations were not serious, were technical in nature, and did not threaten the safety or welfare of the children.

    However, Class 1 violations were repeatedly observed.

    
    

18. Ms. Garcia stressed the fact that her family is dependent on the income she derives from operating the facility, and she will not be able to support her family if the license is not renewed. She added that she is now in limbo on whether to prepay the rent on the building where her current facility is located. Had the facility been operated in compliance with Department rules, these concerns would not be present.

    
    

19. Ms. Garcia also contended that Roy Garcia would not allow her husband, Elmer, to substitute for a missing teacher. However, Elmer works in the kitchen, drives a facility vehicle, and at that time did not have the minimum training necessary to qualify as a facility employee who supervises children.

20. Ms. Garcia further contended she was never given appropriate training on how to determine if a prospective employee has current background screening, especially since she has very few computer skills. This assertion is contrary to the accepted evidence, as she could have simply called the Department's Orlando office to verify the eligibility of prospective employees or volunteers before they were hired. Notably, even after a series of administrative complaints were issued concerning unscreened employees/volunteers, as of January 5, 2017, four persons who had worked or volunteered at the facility still had no Level 2 background screening.

21. Ms. Garcia presented the testimony of four mothers whose children used the facility when the license was active. All were pleased with the care of their children. They especially appreciate the fact that the facility is open until midnight, is located in an area convenient to where they live or work, and charges less than other child care facilities in the area.

    
    

    CONCLUSIONS OF LAW

    
    

22. Where the Department seeks to deny a renewal of an applicant's license based on specific acts of misconduct, and to impose an administrative fine, it has the burden of proving the allegations in the charging document by clear and convincing evidence. See, e.g., Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla.

    1996). See also Fla. Dep't of Child. & Fams. v. Davis Fam. Day

    
    

    Care Home, 160 So. 3d 854, 857 (Fla. 2015).

    
    

23. The Department's letter of September 16, 2016, alleges that based on the Administrative Complaints dated February 19 and June 30, 2016, which are now final agency action, and repeat violations observed during the probationary period, Respondent's application for renewal of the license should be denied and an administrative fine in the amount of $1,565.00 should be imposed.

24. The Department may deny a license and impose an administrative fine for a violation of chapter 402 or Department rules. § 402.310(1)(b)3., Fla. Stat. In doing so, the Department may consider any previous violations by the licensee as a factor in determining the appropriate penalty. Id. Here,

    the record shows that during the less than two-year period that the facility was in operation, multiple Class 1, 2, and 3

    
    

    violations were observed, including numerous repeat violations while the license was on probationary status.

25. By clear and convincing evidence, the Department has proven the allegations in its letter dated September 16, 2016. Therefore, denial of Respondent's application and the imposition of a $1,565.00 administrative fine are warranted.

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 denying the application to renew Respondent's license and imposing an administrative fine of

$1,565.00.

DONE AND ENTERED this 9th day of February, 2017, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 9th day of February, 2017.

ENDNOTES

1/ In her PRO, Ms. Garcia contended that she was "disadvantaged" at the hearing because the interpreter provided by the Department "did not have a fluent English." This contention is rejected.

2/ If a volunteer works more than ten hours per month at a facility, they must be background screened. If a volunteer works less than ten hours per month, they must be supervised by a qualified employee when they are with children unless they have been background screened. The volunteers used by Respondent did not comply with this requirement.

COPIES FURNISHED:

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

T. Shane DeBoard, Esquire Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801 (eServed)

Maria T. Navas y Garcia 1-2-3 Step by Step, LLC 5600 Old Cheney Highway

Orlando, Florida 32807-1924

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 of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the Agency Clerk, Department of Children and Families, at the address listed above. No further papers should be filed with the Division of Administrative Hearings.

Docket for Case No: 16-005971

Orders for Case No: 16-005971