STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

A CHILD'S WORLD CHILDCARE AND PRESCHOOL, INC.,

Respondent.

/

Case No. 19-2343

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A. Schwartz of the Division of Administrative Hearings ("DOAH") for final hearing by video teleconference on July 15, 2019, at sites in Tallahassee and Fort Pierce, Florida.

APPEARANCES

For Petitioner: Laurel Hopper, Esquire

Department of Children and Families

337 North U.S. Highway 1, Suite A Fort Pierce, Florida 34950

For Respondent: Mark J. Stempler, Esquire

Becker & Poliakoff, P.A.

625 North Flagler Drive, 7th Floor West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner, Department of Children and Families ("Department"), established by clear and convincing evidence that Respondent, A Child's World Childcare and Preschool, Inc.

("A Child's World"), committed a Class I violation; and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 27, 2019, the Department issued an Administrative Complaint against A Child's World, alleging that the day care facility committed a Class I violation of the Child Care Facility Handbook, section 2.4.1.B., by failing to provide adequate supervision of a child ("K.P.") at the facility. The Department seeks to impose an administrative fine against A Child's World in the amount of $500.00 and terminate its

Gold Seal Quality Care designation.

On April 23, 2019, A Child's World timely filed a Request for Formal Administrative Hearing. On May 6, 2019, the Department referred the matter to DOAH to assign an Administrative Law Judge to conduct the final hearing. On

May 14, 2019, the undersigned set the final hearing for July 15, 2019. On July 3, 2019, the parties filed their Joint Pre- hearing Stipulation.

The final hearing was held on July 15, 2019, with both parties present. At the hearing, the Department presented the testimony of Robyn Pomeren and Kathleen Walters. The Department's Exhibits 1 through 5 and 7 through 9 were received in evidence upon stipulation of the parties. A Child's World presented the testimony of Malissa Morgan, Kristin Colburn,

Jocelyn Martinez, and Tom Peer. A Child's World's Exhibits 1 through 17 were received in evidence upon stipulation of the parties.

The two-volume final hearing Transcript was filed on July 30, 2019. On July 31, 2019, the parties filed a joint motion to extend the deadline until August 16, 2019, to file

proposed recommended orders. On July 31, 2019, the undersigned entered an Order granting the motion. The parties timely filed proposed recommended orders, which were considered in the preparation of this Recommended Order.

The facts set forth in the Joint Pre-hearing Stipulation have been incorporated below. Unless otherwise indicated, all references to the Florida Statutes and Florida Administrative Code are to those provisions in effect on the date of the

alleged incident.

FINDINGS OF FACT

1. The Department is responsible for the enforcement of sections 402.301 through 402.319, Florida Statutes, governing the regulation of child care facilities in Florida.

2. Since 2003, A Child's World has operated continuously as a licensed child care facility at 703 Southwest 6th Street, Okeechobee, Florida.

3. By all accounts, A Child's World is an exemplary facility. A Child's World is recognized as a Tier 4 provider by

   
   

   the Early Learning Coalition, the highest quality indicator in the community. Since 2004, A Child's World has been Gold Seal accredited.

4. The incident giving rise to the Administrative Complaint occurred on January 29, 2019, at the child care facility.

5. In August 2018, K.P. began attending A Child's World along with her older sister, A.P. On the date of the incident,

   K.P. was four years old and A.P. was five years old.

   
   

6. During the morning of January 29, 2019, K.P., A.P., and other children were playing on the outdoor fenced-in playground at the facility. At that time, all of the children were supervised by a teacher.

7. Subsequently, Angela Osterman, center director for A Child's World, called for A.P to be brought from the

   playground to the office for dismissal. When K.P. went to the office along with A.P., Ms. Osterman brought K.P. back to the playground and brought her directly to Deion Hayes, the teacher responsible for the group of children still on the playground. Subsequently, Ms. Osterman made an intercom announcement to all staff not to allow K.P. to accompany her sister when only the sister is called for dismissal.

8. At 11:55 a.m., the children and teacher came inside the building from the playground. However, K.P. was left outside on

   
   

   the playground, alone and unsupervised because the teacher who was responsible for her confused his "head count" of the children when he brought the children back in the building.1/

9. K.P. was alone and unsupervised playing on the playground for approximately 40 minutes.

10. At 12:37 p.m., K.P. exited the playground by climbing a five-feet high chain-link fence, which surrounds the perimeter of the playground. Almost immediately, facility staff saw K.P. standing close to the front of the building (approximately three and one-half to four feet from the building) in front of the infant room, playing with rocks in a flower bed, at which time

    K.P. was retrieved and brought back inside the building for an immediate evaluation.

11. K.P. never left the facility premises. A video recording shows K.P. on the playground, alone; climbing over the fence at 12:37 p.m.; and being retrieved and brought back inside the building almost immediately thereafter.

12. K.P. was not injured or in any distress following the incident. In fact, K.P. was smiling and in very good spirits following the incident.

13. Under the particular facts of this case, the Department failed to prove by clear and convincing evidence that the inadequate supervision of K.P. posed an imminent threat which

    
    

    could or did result in her death or serious harm to her health, safety, or well-being.

14. At 1:12 p.m., Malissa Morgan, the owner of the facility, self-reported the incident. In addition, K.P.'s mother was contacted and came to the school. K.P.'s mother kept

    K.P. in school for the remainder of the day and K.P. returned to the school the very next day.

15. A Child's World fired Mr. Hayes on January 29, 2019.

    
    

    In addition, the next day, A Child's World conducted a full retraining of its staff and imposed stricter policies regarding supervision.

16. K.P. continued attending A Child's World for months after the incident and returned after summer vacation. K.P. and

    A.P. are currently enrolled for this new school year.2/

    
    

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.

18. A proceeding, such as this one, to impose discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973).

    Accordingly, the Department must prove its allegations against A Child's World by clear and convincing evidence. Dep't of

    
    

    Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

    
    

    Co., 670 So. 2d 932, 933-34 (Fla. 1996).

    
    

19. The "clear and convincing evidence" standard requires that the evidence must be found credible; the facts to which the witnesses testify 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. In re Davey, 645 So.

    2d 398, 404 (Fla. 1994); Slomowitz v. Walker, 429 So. 2d 797,

    
    

    800 (Fla. 4th DCA 1983).

    
    

20. In addition, the violations of statutes and rules must be those specifically alleged in the administrative complaint. Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Due process prohibits a governmental agency from taking penal action against a licensee based on matters not specifically alleged in the charging document. Id.; see also Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA

    1992)("[T]he conduct proved must legally fall within the statute or rule claimed to have been violated.").

21. In this case, the October 25, 2017, version of Florida Administrative Code Rule 65C-22.010, in effect on January 29, 2019, defines a "Class I Violation" as "an incident of

    
    

    noncompliance with a Class I standard as described on CF-FSP

    
    

    Form 5316, October 2017. Child Care Facility Standards Classification Summary, which is incorporated by reference."

    (emphasis added).

    
    

22. In its Proposed Recommended Order, the Department specifically relies solely on section 4.2 of the Child Care Facility Standards Classification Summary in effect at the time of the incident.

23. Section 4.2 of the Child Care Facility Standards Classification Summary, expressly provides as follows:

    4.2 One or more children were not adequately supervised in that [ ], which posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety or well-being of a child.

    
    

24. Thus, to rise to the level of a Class I violation, it is not enough for the Department to show by clear and convincing evidence that a child was not adequately supervised. The Department must specifically allege and establish, by clear and convincing evidence, that a child was not adequately supervised, "which posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety or well- being of a child."

25. Because of the penal nature of this proceeding, this "rule must be construed strictly, in favor of the one against

    
    

    whom the penalty would be imposed." Munch v. Dep't of Prof'l

    
    

    Reg., Div. of Real Estate, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992).

26. In this case, the Administrative Complaint makes no mention of the Child Care Facility Standards Classification Summary, let alone section 4.2 or any other specific licensing standard in the Child Care Facility Standards Classification Summary. The Administrative Complaint also fails to allege that the incident "posed an imminent threat" to K.P. "and could or did result in death or serious harm to the health, safety, or well-being of a child." In fact, the word "imminent" is notably absent from the Administrative Complaint. Although the Administrative Complaint references "serious risk factors" and "significant risk of harm," that is not the same as the requirement to allege an imminent threat. "Imminent" is a term which encompasses a narrow time frame and means "impending" and "about to occur." J.B.M. v. Dep't of Child. & Fams., 870 So. 2d

    946, 951 (Fla. 1st DCA 2004). An imminent threat is essential to a finding of a Class I violation. On this ground alone, the Administrative Complaint should be dismissed.

27. In any event, as detailed above, the incident did not pose an imminent threat of harm to K.P. that could or did result in death or serious harm to her health, safety, or well-being.

    K.P. played on the playground for approximately 40 minutes

    
    

    within the perimeter of the chain-link fence and was retrieved almost immediately after she climbed over the fence. K.P. was retrieved just a few feet from the building while playing in a flower bed and she never left the facility. She was in good spirts and unharmed.

28. This is not to say that the undersigned condones K.P. being left unsupervised on the facility premises. The Department could have charged a lesser offense, one that does not require proof of imminent harm that could or did result in death or serious harm to the safety or well-being of a child. However, the Department chose to charge the most serious of offenses, a Class I violation, which requires clear and convincing evidence of inadequate supervision, which posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety, or well-being of the child. The Department failed to meet its heavy burden of establishing a Class I violation.3/

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 A Child's World did not commit a Class I violation and dismissing the Administrative Complaint.

DONE AND ENTERED this 3rd day of September, 2019, in Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 3rd day of September, 2019.

ENDNOTES

1/ Deion Hayes failed to account for K.P. upon exiting the playground and returning to the building with the other children. Kayla James was A Child's World's teacher, who relieved Mr. Hayes for his lunch break and took over supervision of the group of children on the playground, including K.P. Ms. James relieved Mr. Hayes for his lunch break at noon time and noticed that K.P. was not present, but she thought K.P. had gone home earlier when her sister was released.

2/ There is a ditch located approximately 45 feet from where

K.P. exited the playground. The Department asserts that the ditch had water in it on the date of the incident, while

A Child's World contends there was no water in the ditch on the date of the incident. The undersigned concludes that the ditch did not have water in it on the date of the incident.

In reaching this conclusion, the undersigned observed the demeanor and carefully considered the testimony of the witnesses and evidence presented at hearing. The undersigned was more persuaded by the evidence and testimony presented by A Child's World than the evidence and testimony presented by the Department. In any event, K.P. did not walk near the ditch on the date of the incident.

There is also a road which borders the facility's premises. During the time period in which the incident occurred, there was little traffic on the road. In any event, K.P. did not walk toward the road.

3/ A Class I violation is the most serious type of violation and would automatically result in the termination of A Child's World's Gold Seal designation until it has no Class I violations for a period of two years. § 402.281(4)(a), Fla. Stat.

Because a Class I violation necessitates a threshold finding that the inadequate supervision "posed an imminent threat to a child, and could or did result in death or serious harm to the health, safety or well-being of the child," and the undersigned made a factual and dispositive determination that the inadequate supervision did not pose an imminent threat of harm to the health, safety, or well-being of K.P., it is unnecessary for the undersigned to address whether A Child's World violated section 2.4.1.B. of the Child Care Facility Handbook.

In any event, section 4.3 of the Child Care Standards Classification Summary, in effect at the time of the incident, which references section 2.4.1.B of the Child Care Facility Handbook, states: "A child was not adequately supervised and left the facility premises without staff supervision."

section 4.10 of the Child Care Standards Classification Summary, in effect at the time of the incident, further states: "A child was left behind in a vehicle at the facility, on a field trip, or an activity away from the facility." As detailed above, K.P. never left the facility.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Ellyn S. Bogdanoff, Esquire Becker & Poliakoff, P.A.

1 East Broward Boulevard, 18th Floor Fort Lauderdale, Florida 33301 (eServed)

Laurel Hopper, Esquire

Department of Children and Families

337 North U.S. Highway 1, Suite A Fort Pierce, Florida 34950 (eServed)

Mark J. Stempler, Esquire Becker & Poliakoff, P.A.

625 North Flagler Drive, 7th Floor West Palm Beach, Florida 33401 (eServed)

Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Chad Poppell, 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: 19-002343

Orders for Case No: 19-002343