STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MY FIRST STEPS OF BRADENTON, INC., Petitioner, vs. DEPARTMENT OF CHILDREN AND FAMILIES, Respondent. / | Case No. 19-5286F |
FINAL ORDER
Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH) conducted the final hearing on March 9, 2020, by video teleconference at sites in Sarasota and Tallahassee, Florida.
APPEARANCES
For Petitioner: Jed Berman, Esquire
Infantino and Berman Post Office Box 30
Winter Park, Florida 32790
For Respondent: Lisa Ajo, Esquire
Department of Children and Families 9393 North Florida Avenue, Suite 900
Tampa, Florida 33625
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent, Department of Children and Families (Department or Respondent), was substantially justified in initiating a disciplinary action against Petitioner, My First Steps of Bradenton, Inc. (My First Steps or Petitioner), and/or whether special
circumstances exist that would make it unjust to award attorney's fees and costs to Petitioner pursuant to section 57.111, Florida Statutes (2019).1
PRELIMINARY STATEMENT
On August 23, 2018, the Department issued an Administrative Complaint against My First Steps, a licensed child care facility. The Administrative Complaint set forth allegations of an incident of inappropriate discipline on May 30, 2018, and charged My First Steps with a Class I violation of specified child discipline licensure standards in statute and rules. The Department proposed a $500.00 fine as the penalty for the alleged violation.
My First Steps contested the charge, and the case was referred to DOAH and assigned Case No. 18-5147 (the underlying action). Following an administrative hearing, the Administrative Law Judge (ALJ) issued a Recommended Order on May 8, 2019, in which he found that there was "less than clear and convincing evidence" of the charge, and recommended dismissal of the Administrative Complaint.
The Department issued its Final Order in the underlying action on August 9, 2019, in which it adopted the recommended Findings of Fact and Conclusions of Law and dismissed the Administrative Complaint.
On October 3, 2019, My First Steps filed an Application for Attorney's Fees and Costs pursuant to section 57.111. The fee case was assigned Case No. 19-5286F. The Department filed a response asserting that its Administrative Complaint was substantially justified and/or that special
1 References to Florida Statutes are to the 2019 version, unless otherwise provided. Section
57.111 has not been amended since 2011, and therefore, the 2019 version is the same as the law in effect at the time when the claim for attorney's fees and costs arose.
circumstances exist which would make the requested award unjust. The Department requested an evidentiary hearing.
The final hearing was set for February 7, 2020. At Petitioner's request, a continuance was granted, and the hearing was scheduled for March 9, 2020.
Prior to the final hearing, the parties filed a Joint Pre-hearing Stipulation in which they agreed to several material facts. During the hearing, they agreed to several other facts on the record. The agreed facts are incorporated in the Findings of Fact below. As a result of the stipulations, Petitioner's prima facie case was established, leaving only the Department's defenses (substantial justification and/or special circumstances) to be determined.
At the hearing, the parties offered Joint Exhibits 1 and 2, which were admitted into evidence.2 Petitioner presented no testimony. Petitioner's Exhibits 2, 3, 5, 7, and 8 were admitted.
Respondent offered the testimony of Maritza Gonzalez, a Department child care licensing supervisor for a multi-county region that includes Manatee County; and Mary Beth Wehnes, senior management analyst supervisor in the Department's child care program office in Tallahassee,
2 Joint Exhibit 1, a Child Institutional Investigative Summary, appears to be confidential, but each party proposed to offer this document as an exhibit and did not request protective measures. The Department's copy offered in evidence was redacted to conceal specific confidential information, such as children's full names and the birthdate of the 18-month-old child involved in the incident at issue in the underlying action. Petitioner's copy offered in evidence was unredacted. The undersigned suggested that both copies be included in the hearing record, with the unredacted copy secured in a sealed envelope identifying the confidential nature of its contents and restricting access to those directly involved in this proceeding. The parties agreed this procedure was appropriate to protect the confidential information in Joint Exhibit 1. Joint Exhibit 2 is a DVD showing the incident at issue. Again, each party proposed the DVD as an exhibit and requested no protective measures. However, the DVD portrays images of six children between ages one and two. To protect the children's privacy, the undersigned suggested that this DVD should also be secured in the sealed envelope to restrict access to those directly involved in this proceeding. The parties agreed.
accepted as an expert in child care facility rules and regulations. Respondent's Exhibits 1 through 4 were admitted.
At Respondent's request or as agreed on the record at the hearing, official recognition was taken of the following record material from the underlying action: the Administrative Complaint; specific pre-hearing filings (identified on the record in this case, see Tr. at 31-33); the final hearing Transcript; and the Recommended and Final Orders. In addition, by agreement, official recognition was taken of the following statute, rules, and material incorporated in the rules by reference: section 402.305, Florida Statutes (2017); Florida Administrative Code Rules 65C-22.001 and 65C-22.010 (both as amended in October 2017); an excerpt of the Child Care Facility Handbook (October 2017), with the cover page and pages 17 and 18; and the Child Care Facility Standards Classification Summary (October 2017).
Petitioner requested a 30-day deadline after the filing of the transcript to submit proposed final orders, rather than the ten-day deadline allowed by rule.3 The Department did not object, and the request was granted.
The Transcript of the final hearing was filed on April 14, 2020. Both parties timely filed Proposed Final Orders, which have been considered in the preparation of this Final Order.
FINDINGS OF FACT
The Department is the state agency responsible for licensing and regulating child care facilities, to ensure the health and safety of children in care.
3 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day time period for issuing the Final Order. See Fla. Admin. Code R. 28-106.216.
The Department initiated the underlying action by issuing an Administrative Complaint against My First Steps, a licensed child care facility.
My First Steps is owned and operated by Carina Piovera. It is organized as a corporation, with its principal office in Florida. When the underlying action was initiated, My First Steps had no more than 25 full-time employees and a net worth of not more than $2,000,000.00. As the parties stipulated, My First Steps is a small business party as defined in section 57.111(3)(d).
My First Steps was the prevailing party in the underlying action. The Department was not a nominal party in that action.
My First Steps timely filed its application for an award of attorney's fees and costs under section 57.111, less than 60 days after the Final Order was rendered.
Petitioner filed an affidavit attesting to the attorney's fees and costs incurred in the underlying action, provided billing records, and submitted an attorney's affidavit attesting to the reasonableness of the hourly rate charged by counsel of record for Petitioner. Respondent filed a counter-affidavit that disputed certain charges and one cost item.
At the hearing, Petitioner withdrew the items to which Respondent objected. Petitioner's revised claim, quantified in its Proposed Final Order, is for $7,015.00 in attorney's fees and $507.88 in costs. The revised claim is reasonable, appropriately supported, and not disputed by Respondent.
The only disputed issues to be determined are related to the Department's defenses: whether the issuance of the Administrative Complaint was substantially justified; and/or whether special circumstances exist which would make the award of fees and costs to My First Steps unjust. Findings Related to Substantial Justification Defense
The Administrative Complaint set forth the following alleged facts that were the basis for the charged violation:
On May 30, 2018, K. Alejandra-Pacheco,[4] a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing on up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout the interaction with Ms. Piovera, who appears to be intimidating the child. This incident was recorded by the facility camera. The inappropriate discipline described above was frightening to the child and is a Class I violation of child care licensing standards.
The charge against My First Steps was as follows:
The foregoing facts violate Section 2.8, Child Care Facility Handbook, incorporated by reference in Rule 65C-22.001(6), F.A.C. (2017), which states in part:
2.8 Child Discipline
A. The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from being subjected to discipline which is severe,
4 The staff person identified in the Administrative Complaint as K. Alejandra-Pacheco testified in the underlying action that her full name is Karina Alejandra Briseño Pacheco. She is referred to by different combinations of these four names throughout the record in this case, including Karina Briseño, Karina Pacheco, Alejandra Briseño, and Alejandra Briseño; and the name Briseño is sometimes spelled Briceño. All of these references are to the same person. She is referred to herein as Ms. Pacheco.
humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited.
* * *
The following discipline techniques shall be prohibited in the child care facility:
The use of corporal punishment/including, but not limited to:
Hitting, spanking, shaking, slapping, twisting, pulling, squeezing, or biting;
Demanding excessive physical exercise, excessive rest, or strenuous or bizarre postures;
Compelling a child to eat or have in his/her mouth soap, food, spices, or foreign substances;
Exposing a child to extreme temperature;
Rough or harsh handling of children, including but not limited to: lifting or jerking by one or both arms; pushing; forcing or restricting movement; lifting or moving by grasping clothing; covering a child's head.
The penalty sought by the Administrative Complaint for the alleged Class I violation was a fine of $500.00.
The factual allegations were primarily based on a video of the incident. The allegations reflect the collective perceptions of a group of Department personnel who met to assess the video when considering whether to issue an Administrative Complaint. The group included Maritza Gonzalez, who was and is the child care licensing supervisor for a region that includes Manatee County, where My First Steps in located; and Mary Beth Wehnes, the Department's expert in this case, who was the Department's regional program safety manager at the time.
The Department's perception of the video was as follows: in the beginning, five of the six children circling a table in a classroom were left to their own devices while the teacher, Ms. Pacheco, was engaged in a one-on- one art project with one child at one end of the table. The five children were unruly, understandably so, considering these one- and two-year-olds were not given any appropriate activity, and did not want to sit still and do nothing. Some of the children, including A.M., were standing on their chairs and taking their shoes off; another child was chewing on a shoe. When A.M. hoisted himself up on the table (about 50 seconds into the video), the teacher spoke to him (though there is no audio, so what she said could not be determined). A.M. quickly scooted off the table and into his chair. Ms. Piovera then strode into the room and all of the children appeared to freeze. Ms. Piovera went straight to A.M., got down in front of A.M.'s chair, grabbed him and the chair, and moved in very close to hover over him. Her body language was intimidating, especially to a little one only 18 months old. When
Ms. Piovera shifted a little to the side, A.M.'s face was revealed (at the 1:12 mark). He was crying and appeared frightened. Ms. Piovera then reached for a couple of tissues, and roughly wiped/pinched his nose several times, the second time so roughly that his feet flew up and his head went back. Shortly after that, Ms. Piovera forcefully turned and pushed A.M.'s chair, with him in it, up to the table. She then grabbed A.M.'s arms from under the table and forcefully lifted them up, then put them down on the table. A.M. put his head down on the table, continuing to cry. The child next to him also put her head on the table; all of the children seemed scared in reaction to Ms. Piovera. She then left the room.
In viewing the video, the Department had the impression that
Ms. Piovera came in to discipline the children, considering how the teacher was handling the classroom and how the children were acting before
Ms. Piovera entered the room. The Department considered Ms. Piovera's actions in the room to be inappropriate discipline. The Department was
concerned with the aggressive, intimidating body language of Ms. Piovera when she aggressively strode into the room, squatted down in front of A.M., grabbed him and his chair, and moved in to hover over him. The Department was concerned with Ms. Piovera's rough physical handling of A.M., when she repeatedly wiped his nose, pinching it as she wiped, so forcefully that she made his feet fly up and head go back. The Department was concerned by Ms. Piovera pushing the child in his chair up to the table, then grabbing his arms from under the table to forcefully lift them up and bring them back down on the table. The Department perceived this rough physical handling of
A.M. to be the disciplinary consequence for his misbehavior. The Department considered it to be a serious matter that violated the licensing standards for child discipline, classified by rule as a Class I violation.
The Department's decision to issue the Administrative Complaint also took into consideration a joint investigation of My First Steps, following a complaint to the central abuse hotline (Hotline). The complaint was made by A.M.'s mother, based on her observations from a camera feed in A.M.'s classroom at My First Steps. She saved the video to her phone.
Ms. Gonzalez received the initial report regarding the incident by email from the child's mother on June 12, 2018, with additional follow-up information provided by the mother through June 15, 2018. Based on the nature of the allegations, Ms. Gonzalez instructed the mother to report the incident to the Hotline, operated by a different Department division.
The Hotline received the mother's report of the incident, accepted the complaint for investigation, and referred it for a joint investigation: a child protective investigation to be conducted pursuant to standards in chapter 39, Florida Statutes, and corresponding rules; and a child care licensing complaint investigation to be conducted pursuant to licensure standards in section 402.305 and implementing rules. The child protective investigation was referred to the Manatee County Sheriff's Office (MCSO), the designated
child protective investigator. The child care licensing complaint investigation was referred to Ms. Gonzalez, who assigned a child care licensing counselor.
The joint investigation began on June 20, 2018. An on-site investigation was conducted at My First Steps that afternoon by the MCSO child protective investigators and the child care licensing counselor. The investigation centered on the video provided by A.M.'s mother. The owner/ director, Carina Piovera, was shown the video and interviewed, as was
Ms. Pacheco, the teacher assigned to the classroom for one- and two-year-olds where the incident occurred. Ms. Gonzalez participated by telephone to translate the interview with Ms. Pacheco, who only spoke Spanish.
The director (Carina) mistreated A.M. on [May 30, 2018]. There were 6 children in the classroom with the teacher. The teacher had one of the children with her doing an art project and the other 5 children were sitting at a table doing nothing. Then, the 5 children began taking off their shoes and standing in the chairs. The teacher never made the children sit down while she was with another student doing art. … Carina stormed in the room and hovered over the children. A.M. burst into tears and she grabbed him. Carina reached and grabbed a napkin to wipe A.M.'s nose twice very hard. Carina used enough force to cause A.M.'s head to go back and his feet lift off the floor. Carina took A.M.'s chair and shoved it under the table, pulled his arms up from under the table roughly and put his arms down. A.M. put his head down
5 The mother's Hotline complaint raised other issues addressed in the joint investigation, regarding her child being put in timeout, other children being put in timeout for long periods of time, and another child left to sleep in a chair. A longer video related to these other matters was not offered in evidence. These other complaint issues are omitted from the reports' summary of the mother's complaint because they are not germane to this case. The Department did not include charges in its Administrative Complaint for these other matters.
and continued to cry. It is stated you could tell Carina was angry and was very forceful with A.M.
The MCSO investigators' findings in the "Overall Safety Assessment" and "Summary/Findings Implications" sections of their report set forth their perception of the video. Included were findings that Ms. Piovera "forcefully" wiped A.M.'s nose and "caused the child's head to go back and his feet to come off the floor"; Ms. Piovera also "forcefully" put the child's arms on the table.
The MCSO investigators included in the Overall Safety Assessment Ms. Piovera's statement to investigators that the video on the mother's phone was not accurate, so "it looks more rough than it actually was in real life." But, the report noted, Ms. Piovera stated (on June 20, 2018) that she did not have the original video "since [the incident] was almost one month ago."
After June 20, 2018, the MCSO investigators checked with parents of other children at My First Steps and found no expressions of concern about their children's treatment. On July 16, 2018, they closed the child protective investigation under abuse and neglect standards in chapter 39 with a determination of "not substantiated." That is an intermediate determination, between "verified" and "no indicators." As described by Ms. Gonzalez from her experience in other investigations, "not substantiated" is used when the event actually happened, but it did not cause the level of harm required under chapter 39. Her description comports with the rule definition of the term.6
6 Florida Administrative Code Rule 65C-30.001(16) (December 2017) provides: "'Child Maltreatment Index' is a document that defines specific types of abuse, neglect, or abandonment; and guides decision making by staff at the [Hotline] and Child Protective Investigations regarding screening decisions and investigative findings. The 'Child Maltreatment Index,' CF Operating Procedure No. 175-04, October 2015, is incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-06454." The linked rule-document, at page 5, provides the following definitions: "'Verified' is used when a preponderance of the credible evidence results in a determination the specific harm or threat of harm was the result of abuse, abandonment, or neglect. 'Not substantiated' is used when there is credible evidence which does not meet the standard of being a preponderance to support that the specific harm was the result of abuse, abandonment, or neglect. 'No indicators' is used when there is no credible evidence to support that the specific harm was the result of abuse, abandonment or neglect." (Emphasis added).
The Department was aware that the child protective investigation was closed with the intermediate "not substantiated" determination. The Department considered both the outcome of the child protective investigation and the findings made by the MCSO investigators in their report, which were consistent with the Department's perception of the video.
The Department also considered the investigation report of its licensing counselor, who assessed the complaint in the context of the child care facility licensing standards. The counselor's report found non-compliance with the child discipline standards in section 2.8 of the Child Care Facility Licensure Handbook (Handbook), as well as two other standards.
The Recommended Order set forth how the ALJ perceived the incident upon consideration of the testimony at the hearing in the underlying action and his perception of the video (as discounted by the ALJ's finding in paragraph 8 that the video was "a little fast," a matter relevant to the special circumstances defense discussed below):
Around 10:21 a.m., … Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers.
Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point.
The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clear A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class continued with painting activities. (RO at 6-7).
The video evidence is subject to differing interpretations by reasonable persons. While Petitioner in its Proposed Final Order invited the undersigned to adopt the findings in the Recommended Order describing the incident shown on the video as the findings herein, that invitation must be declined, as the undersigned would describe the incident as portrayed in the video in substantially different terms from the Recommended Order.
For example, while the undersigned would agree that Ms. Piovera came into the classroom to help Ms. Pacheco, who could not keep the children sitting down with their shoes on (and out of their mouths), there is no sign in the video that Ms. Piovera attempted to redirect children from actively standing on chairs and chewing on shoes to actively engaging in appropriate activities such as art and singing. Instead, the video shows that both before and after Ms. Piovera was in the room, only one child was provided an art activity. None of the other five children who were being unruly were redirected to an art activity, singing, or any other activity. And the "class" did not continue with painting activities after Ms. Piovera left the room; only one child continued a painting activity, the same child engaged in the one-on-one painting project with the teacher before Ms. Piovera's entrance. For the remaining one and one-half minutes of the video after Ms. Piovera left the classroom, no new activity was started for the five other children, including
A.M. All five children were subdued in the aftermath of Ms. Piovera. A.M., in particular, continued to cry for a while after Ms. Piovera left the room, kept his head down on the table, and appeared morose, in contrast to the happy, active child he appeared to be before his encounter with Ms. Piovera.
The undersigned also would not describe Ms. Piovera's handling of
A.M. the same as in the Recommended Order. Instead, the undersigned would agree with the Department's perceptions when viewing the video before issuing the Administrative Complaint.
A reasonable interpretation of the video evidence is that rather than making physical contact with A.M. to constructively redirect him to an appropriate activity, Ms. Piovera imposed a physical consequence on A.M. for misbehaving by roughly and forcefully wiping/pinching his nose, twisting and pushing A.M. in his chair up to the table, and forcefully pulling his arms up from under the table and pushing them down to the table. Ms. Piovera forced
A.M. into the position of sitting at the table and forced his arms on the table not to prepare him to start a new activity, but as punishment. Ms. Piovera did not offer A.M. or the other five children any new activity; she left the room after she was done positioning A.M. so Ms. Pacheco could continue her one-on-one painting session with the same one child (and Ms. Pacheco did so for the last one and one-half minutes of the video).
This interpretation is supported by the summary of the on-site investigation in the licensing inspection report. In summarizing
Ms. Pacheco's interview, the report noted Ms. Pacheco said that the five children were behaving improperly while she was attempting to conduct a painting activity with one child. She was asked why she did not attempt to get the children in her classroom under control and she explained that only Ms. Piovera could "correct the children when they are off task."7
7 Ms. Gonzalez, who translated the interview, recalled Ms. Pacheco stating that only
Ms. Piovera could discipline the children. Ms. Gonzalez remembered that because she made a point of asking Ms. Pacheco what she meant by "discipline." Ms. Pacheco responded that, "well, redirection is what is in the policy." It was reasonable for the Department to consider
Reasonable persons can differ—and have differed—regarding their perceptions of the video. The allegations of fact in the Administrative Complaint are substantially supported by a reasonable perception of the video evidence, albeit that the ALJ in the underlying action saw it differently. The Administrative Complaint allegations are further supported by the investigations and findings of the child protective investigators and the child care licensing counselor in their respective reports. This material was all available to and considered by the Department before issuing the Administrative Complaint.
The testimony at the final hearing in this case elicited by Petitioner's counsel makes the point that the allegations are supported by a reasonable perception of the video. In questioning the Department's expert, Petitioner's counsel asked whether it was a reasonable interpretation of the video for the ALJ to find that when the child's feet lifted up and head went back with
Ms. Piovera's second nose wipe, that was the child pulling back because he does not like his nose wiped. The witness responded, "I don't agree with that." Counsel then asked, "But it's one that's possible, isn't it?" The witness agreed, "Sure." (Tr. at 91). The issue here is not whether the ALJ's findings reflect one possible interpretation of the video. The issue is whether another reasonable interpretation of the video—that of the Department's witnesses at the time, supported by the investigations—provided a reasonable basis for the allegations in the Administrative Complaint. The undersigned finds that there was a reasonable basis in fact for the allegations in the Administrative Complaint.
Petitioner argued that the Department should have given weight to Ms. Piovera's statement that the reason for the mother's complaint was that
information from the investigation provided by Ms. Gonzalez, who was part of the group that assessed the video when deciding whether to issue the Administrative Complaint. Her information supported the group's perception from the video itself. Ms. Gonzalez also made contemporary notes during the interview, but the notes are fairly sketchy, as would stand to reason given her focus on actively translating for Ms. Pacheco.
the mother owed her money. Petitioner also argued the Department should have considered the fact that even though the mother saw the incident on the camera feed, she nonetheless let the child remain at the facility for several more hours, until coming to pick up him at 2:15 p.m. Lastly, Petitioner pointed to the mother's delay in lodging the complaint. None of these issues affect what is shown on the video or what was found in the investigative reports. If the mother's testimony had been the sole or primary evidence of the incident, then the points raised by Petitioner would bear on her credibility. However, the basis for the complaint was what the mother observed on the camera feed. It is noteworthy that the Department was able to, and did, independently assess the video evidence and, as previously noted, did not include charges in the Administrative Complaint for some aspects of the mother's complaint. As for the charge stemming from the incident shown on the video in evidence, however, Petitioner's points do not undermine the reasonable basis in fact for the allegations.
Findings Related to Special Circumstances Defense
Ms. Piovera was not forthright regarding the availability of the actual video footage recorded on her security system. She repeatedly suggested that the original video footage would present a different, slower scene in which she would not appear to be aggressive and rough with A.M., to plant the seed of doubt regarding the accuracy of the video provided by the mother, while not ever producing the original video footage so her theory could be tested.
In Ms. Piovera's interview with the MCSO investigators, she told them that the video obtained from the complaining mother was not accurate, making her appear to be rougher than she actually was in dealing with A.M. But, she said, the original video was no longer available, because it had been nearly one month since the May 30, 2020, incident. When Ms. Piovera said that—on June 20, 2018—21 days had passed since the incident.
The pre-hearing documents in the underlying action officially recognized in this case at the Department's request show that Ms. Piovera
made the same claim of inaccuracy when deposed in the underlying action, but suggested that she could obtain the original video from the security system company. That triggered an elaborate effort by the Department to obtain the original video in discovery, strung along by Petitioner's promises through her attorney that the video would be forthcoming, followed by changing excuses as to why the video was not yet forthcoming but would be soon, and changing stories as to when and how it would be provided.
The Department's motion to compel in early February 2019 laid out the efforts to that point to obtain the video. See First Amended Motion to Compel at 2, ¶ 9, filed Feb. 8, 2019. The motion to compel was granted, but still no video was produced; instead, there were more promises and changing stories as to when and how the video would be provided. Ultimately, the Department moved for sanctions, which was granted by Order issued
March 18, 2019 (Sanction Order). The Sanction Order recited that the Department had a copy of the surveillance footage from a third party (the mother), but that My First Steps "contends the copy does not accurately depict the incident in question because the video replay is faster than the real time. As a sanction, the Department requests that [My First Steps] be prevented from objecting to the accuracy of the Department's copy." The ALJ agreed, and imposed the following sanction: "[My First Steps] will not be allowed to object to the accuracy or admissibility of the Department's copy of the facility surveillance video for May 30, 2018."
My First Steps moved for rehearing of the Sanction Order. The Department's response chronicled the progression of assurances provided by Ms. Piovera, through counsel, none of which were met, and ultimately, as before, the story changed. The ALJ denied the motion for rehearing.
Again, at the hearing in the underlying action, counsel for My First Steps tried to revisit the Sanction Order, offering case law suggesting harsh sanctions should not be imposed against a party for the counsel's actions. The ALJ stated that he did not think counsel was stonewalling, but he believed
that Ms. Piovera was stonewalling. The ALJ denied this second request for reconsideration of the Sanction Order. (underlying action Tr. at 29-30).
Petitioner essentially concedes that the discovery fiasco is a special circumstance, but argues it should only render part of the claimed fees unjust. Petitioner contends that its agreement to withdraw those items should end the issue of special circumstances.
Petitioner's view of the limited scope and impact of these special circumstances is not supported by the record. The issue of the original video's availability was more than just a discovery matter. Instead, Ms. Piovera invoked her claim that the mother's copy of the video was inaccurate, making her appear rougher with the child than she was, when she was investigated on June 20, 2018. The investigators found her statement significant enough to include it in their Overall Safety Assessment, after they described the video showing that Ms. Piovera was rough and forceful with the child. The investigators also made a point of recounting Ms. Piovera's representation that the original video was no longer available by that point, three weeks after the incident. A fair inference from that recitation is that the investigators asked Ms. Piovera for the original video after she said the copy they were reviewing was not accurate.
The issue of the original video's availability also had an impact on the outcome of the underlying action. Despite the Sanction Order, at the final hearing Ms. Piovera was permitted to testify over objection—for the stated purpose of allowing My First Steps to make a record—that the video in evidence was not accurate, appearing faster than real life. She painted the picture that the "inaccurate" video made her look like she rushed into the room and was aggressive and rough. Again, notwithstanding the Sanction Order and the stated purpose for allowing this testimony, the ALJ ended up accepting Ms. Piovera's testimony, finding that the video in evidence was
"a little fast." (RO at 5, ¶ 8). Implicitly, the ALJ accepted the implications: that Ms. Piovera appeared rough when she really was not; Ms. Piovera
appeared to rush in when she really did not move that fast; and Ms. Piovera's actions appeared aggressive and harsh when they really were not.
A critical point that must be made here is that Ms. Piovera's own testimony at the hearing in the underlying action established that, contrary to what she told the investigators on June 20, 2018, she could have obtained the original video, and she knew she could have obtained the original video, within 30 days of the recording. Ms. Piovera's clear testimony on this point was as follows: "[W]hen I purchased the equipment, they told me they only keep it for 30 days because the memory is not that big. So after 30 days, everything is going to erase." (underlying action Tr. at 33) (emphasis added).
Ms. Piovera thus admitted she knew on June 20, 2018, that she had nine more days to obtain the original video before it would be erased. Yet she told the investigators it was already too late to obtain the original video.8
Ms. Piovera added at the hearing in the underlying action, for good measure, a new excuse for not trying to obtain the original video, stating that "for the privacy and one of the main reasons why I didn't turn this video [sic] is because the parents were not okay with me showing their children in the video. That was one of the main reasons why. I had a letter for them to sign and they refused." (underlying action Tr. at 32). That would not explain why she told investigators the original video was no longer available, nor why she would hesitate to provide an original video to support her claim that the mother's copy of the video, which showed the children, was inaccurate.
These special circumstances are far more than just a discovery matter. Ms. Piovera misrepresented to the MCSO child protective investigators that the original video was no longer available, and used her misrepresentation as
8 After admitting that she has known since she purchased the equipment, and, therefore, knew on June 20, 2018, that she could still obtain the original video, Ms. Piovera claimed at the hearing in the underlying action that she actually wanted to pull up the original video footage on her equipment right then and there, during the investigation, to show the MCSO investigators, but they told her not to, because the video copy showed no evidence of abuse. That claim is not credible; it does not square with her contrary statement that the investigators made a point of including in their report in the Overall Safety Assessment.
a way to undermine the video provided by the mother without actually proving her claim that the mother's video was inaccurate, distorting her actions and making her look rougher than she said she actually was.
Ms. Piovera employed the same strategy in the underlying action. That this was a strategic plan is evident from her attorney's billing records, which include the following entry four weeks before the hearing: "Notify Carina of need to demonstrate that phone video of incident is not accurate." See Pet. Ex. 5, billing entry for February 21, 2019.
The strategy to undermine the perceived reliability of the video in evidence is both a concession by Petitioner that the video provides a reasonable basis for the allegations and charge of rough and harsh handling of A.M. in the Administrative Complaint, and a reason for finding special circumstances making the award of attorney's fees and costs unjust. In short, Ms. Piovera's inconsistent and false statements regarding the original video allowed her to play both sides of the issue, injecting doubt as to the reliability of the mother's video without having to actually prove it.9
Ms. Piovera could have obtained the original video had she really believed it would have helped her respond to the investigation. Instead, she lied and told the investigators she could no longer obtain it. That she succeeded in injecting the same doubt in the administrative hearing, despite the Sanction Order, requires a finding that these special circumstances went to the heart of the issue, and may well have tainted the outcome of the underlying action. Under these unique circumstances, an award of attorney's fees and costs would be unjust.
9 The undersigned does not suggest that counsel for Petitioner sponsored or was aware of his client's misrepresentations. Ms. Piovera's testimony at the final hearing in the underlying action that she knew since she purchased the surveillance equipment that she could obtain the original video within 30 days of the recording appeared to be the first time this statement was made. Conceivably, the statement could have been overlooked even after it slipped out.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 57.111, Fla. Stat.
My First Steps seeks an award of attorney's fees and costs pursuant to section 57.111, the Florida Equal Access to Justice Act (FEAJA), for having to defend itself in the underlying action. Section 57.111(4)(a) provides:
Unless otherwise provided by law, an award of attorney’s fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.
The purpose of the FEAJA is "to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in certain situations an award of attorney's fees and costs against the state."
§ 57.111(2), Fla. Stat. (emphasis added). The FEAJA "is designed to discourage unreasonable governmental action, not to paralyze agencies doing the necessary and beneficial work of government." State, Dep't of Health & Rehab. Servs. v. So. Beach Pharmacy, Inc., 635 So. 2d 117, 121 (Fla. 1st DCA 1994).
The parties stipulated to the facts establishing My First Steps' prima facie entitlement to an award under this provision. As found above, based on the parties' stipulations, My First Steps is a small business party that prevailed in an administrative proceeding that was initiated by the Department, and in which the Department was not a nominal party.
The Department also agreed on the record that Petitioner timely filed its application for an award of attorney's fees and costs, meeting the requirement in section 57.111(4)(b)2.
The fee and cost award "shall be made" to My First Steps "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." § 57.111(4)(a), Fla. Stat.
The Department has raised both statutory exceptions as defenses, asserting that My First Steps should not be awarded attorney's fees and costs either because the Department's actions were substantially justified or because special circumstances exist which would make the award unjust. Proof of either defense would dictate denial of an award. The Department "has the burden to show substantial justification or special circumstances, in order to avoid liability for fees and costs." So. Beach Pharmacy, 635 So. 2d at 121; accord Ag. for Health Care Admin. v. MVP Health, Inc., 74 So. 3d 1141, 1143 (Fla. 1st DCA 2011) (agency asserting its action was substantially justified has the burden to prove this exception). The standard of proof is the preponderance of the evidence standard. § 120.57(1)(j), Fla. Stat.
Substantial Justification
Section 57.111(3)(e) provides: "A proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency." Where, as here, the agency initiated action by filing an administrative complaint, the test for substantial justification applies at the time the agency issued the administrative complaint. See McCloskey v. Dep't of Fin. Servs., 172 So. 3d 973, 976 (Fla. 5th DCA 2015).
For the Department's issuance of the Administrative Complaint to have been substantially justified, the Department must have had a solid, though not necessarily correct, basis in fact and law for the position it took. This means something more than merely showing that the action was not frivolous, because "while governmental action may not be so unfounded as to be frivolous, it may nonetheless be based on such an unsteady foundation factually and legally as not to be substantially justified." McCloskey, 172 So. 3d at 976; MVP Health, Inc., 74 So. 3d at 1143-44. As described in MVP Health:
[I]f a state agency can present an argument for its action that could satisfy a reasonable person, then that action should be considered "substantially justified."
74 So. 3d at 1144 (citations and quotes omitted).
The Department issued its Administrative Complaint against My First Steps following its examination of the video provided by the mother, and upon consideration of the investigations conducted and reported by the MCSO child protective investigators and the Department's licensing counselor. As detailed in the Findings of Fact above, the Department had a reasonable basis in fact for issuing the Administrative Complaint.
The reasonable basis in fact for issuance of the Administrative Complaint is not undermined by the credibility questions suggested by Petitioner. A decision to prosecute that turns on a credibility assessment has a reasonable basis in fact and law. Dep't of Health, Bd. of Med. v. Thomas, 890 So. 2d 400, 401 (Fla. 1st DCA 2004). Moreover, as found above, the credibility issues are insignificant, if not irrelevant, in that they do not undermine or affect the video evidence.
The ALJ in the underlying action ultimately found only that there was "less than clear and convincing evidence" to prove the charged violation. (RO at 11). In this proceeding, the Department is not required to prove that it had clear and convincing evidence to support its Administrative Complaint when issued; the Department is not required to prove that its action was correct and that it should have prevailed in the underlying action. Instead, the Department proved it had a reasonable basis in fact for issuing the Administrative Complaint. The Department's perception of the video, supported by the information available to it from the investigations, provided a solid factual basis for issuing the Administrative Complaint that would satisfy a reasonable person. To rule otherwise would be to paralyze the Department in conducting the necessary and beneficial work of government.
The next issue is whether the Department had a reasonable basis in law for issuing the Administrative Complaint. The Administrative Complaint charged My First Steps with a single violation of the child discipline standards in section 2.8 of the Handbook. Section 2.8 contains blanket prohibitions against using certain forms of discipline in a day care facility, consistent with the dictates of section 402.305(12), Florida Statutes (2017), which is incorporated by reference in section 2.8.A. of the Handbook. Section 402.305(12)(a), Florida Statutes (2017), addresses licensure standards for child discipline, and provides:
(a) Minimum standards for child discipline practices shall ensure that age-appropriate, constructive disciplinary practices are used for children in care. Such standards shall include at least the following requirements:
Children shall not be subjected to discipline which is severe, humiliating, or frightening.
Discipline shall not be associated with food, rest, or toileting.
Spanking or any other form of physical punishment is prohibited. (Emphasis added).
Section 2.8.A. of the Handbook codifies the requirement in section 402.305(12)(a)1., Florida Statutes (2017), that a child care facility's policies must prohibit any form of discipline that is severe, humiliating, or frightening. In addition, the last sentence of section 2.8.A. repeats the prohibition in section 402.305(12)(a)3., Florida Statutes (2017): "Spanking, or any other form of physical punishment, is prohibited." (Emphasis added).
The charging section of the Administrative Complaint also quoted in full section 2.8.F.1. of the Handbook. This section, like the last sentence of section 2.8.A., reiterates the blanket prohibition against any kind of "corporal punishment," and provides that that prohibition includes, but is not limited to, a list of specific examples. Several of the listed examples were at least
arguably evident in the video, including "twisting" and "squeezing" in paragraph (a). The prohibition that is most germane is in paragraph (e): "Rough or harsh handling of children, including, but not limited to: lifting or jerking by one or both arms; pushing; forcing or restricting movement; lifting or moving by grasping clothing; covering a child's head."
The Department had a reasonable basis in law for the charged violation of section 2.8 of the Handbook, based on the facts alleged in the Administrative Complaint. There was a reasonable basis in law for charging My First Steps with using prohibited child discipline techniques in violation of section 2.8.A. and 2.8.F.1.(e) of the Handbook, by using corporal (physical) punishment in the form of rough or harsh handling of A.M. as a means of disciplining him for misbehavior.
The prohibited disciplinary technique in section 2.8.F.1.(e) is rough or harsh handling of children. The use of "including but not limited to" makes it unnecessary to specifically determine that the Department had a reasonable basis to charge My First Steps with "lifting or jerking by one or both arms" (though the video shows Ms. Piovera lifting or jerking by both of A.M.'s arms); "pushing" (though the video shows Ms. Piovera pushing A.M. and his chair); or "forcing or restricting movement" (though the video shows
Ms. Piovera both forcing and restricting movement when she grabbed A.M.'s arms, lifted them up from under the table, then put them down on top of the table). The Department had a reasonable basis in law for charging My First Steps with a violation of this standard by Ms. Piovera's rough or harsh handling of A.M. by other means that fell within the general class of the examples listed. For example, the Department's reasonable perception of the video showing Ms. Piovera's rough pinching of an 18-month-old child's nose multiple times, using force that caused his feet to fly up and his head/body to go back, under the guise of hygiene, certainly falls within the general class of examples of the sort of rough or harsh handling of children that is prohibited.
Petitioner seemed to argue, without articulating it as such, that Ms. Piovera could not reasonably be charged with having violated the rule
standards prohibiting discipline in the form of corporal/physical punishment unless she actually caused serious injuries, such as bruises or broken bones, with her rough and harsh physical handling of A.M. But in the child care facility setting, section 402.305(12) mandates "age-appropriate constructive disciplinary practices," and prohibits any form of physical punishment.
Consistent with this statutory mandate, Handbook section 2.8 prohibits discipline techniques using any form of physical/corporal punishment.
Petitioner's Proposed Final Order mischaracterizes section 2.8.F. as "prohibiting corporal punishment that would inflict serious injury to a child." (Pet. PFO at 10, ¶ 22). That is incorrect; the standard prohibits corporal punishment, period.
Petitioner's argument appears to confuse the child discipline standards in section 2.8.A. and 2.8.F.1. of the Handbook with the different standards for child abuse in chapter 39. While there is a different child care facility licensing standard that prohibits acts or omissions that meet the definition of child abuse or neglect as provided in chapter 39, My First Steps was not charged with a violation of that standard.10
Chapter 39 is entitled "Proceedings Relating to Children." At the time of the incident, the term child "abuse" was defined as "any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or
10 Since the Administrative Complaint did not charge a violation of the child abuse licensing standard, that portion of the Handbook was not included in the excerpt that was officially recognized. However, the Child Care Facility Standards Classification Summary (October 2017) (Classification Summary document) was officially recognized in its entirety. The last page of the Classification Summary document (p. 28) sets forth Child Safety violations, including 47.2: "The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in chapter 39," a Class I violation. The Handbook licensure standard cross-referenced is section 8.2.A., not section 2.8.A. or 2.8.F.1.
emotional health to be significantly impaired." § 30.01(2), Fla. Stat. (2017). Thus, resulting injury or harm was required.
Section 30.01(30), Florida Statutes (2017), elaborated on what was meant by injury or harm necessary to prove child abuse:
"Harm" to a child's health or welfare can occur when any person:
(a) Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. … Such injury includes, but is not limited to:
* * *
4. Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. … Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries:
Sprains, dislocations, or cartilage damage.
Bone or skull fractures.
Brain or spinal cord damage.
Intracranial hemorrhage or injury to other internal organs.
Asphyxiation, suffocation, or drowning.
Injury resulting from the use of a deadly weapon.
Burns or scalding.
Cuts, lacerations, punctures, or bites.
Permanent or temporary disfigurement.
Permanent or temporary loss or impairment of a body part or function.
Significant bruises or welts. (Emphasis added).
Whereas under chapter 39, only "excessive or abusive" corporal discipline that results or is likely to result in serious injuries meets the definition of child abuse, the child care facility licensing standards for child discipline provide that any form—not only excessive or abusive forms—of corporal/physical discipline/punishment is prohibited. This key distinction was explained as central to the outcome in Department of Children and Families v. Lincoln Marti Community Agency, Inc., Case No. 16-6033 (Fla. DOAH Apr. 4, 2017; DCF Oct. 10, 2017). Lincoln Marti was a disciplinary action against a licensed child care facility. Similar to the underlying action, at issue was an incident reflected on video, involving a teacher's interaction with two young children, one identified as a three-year-old. Unlike in the underlying action however, the Department charged the child care facility with committing child abuse as defined in chapter 39.
The ALJ in Lincoln Marti found that the teacher administered "a form of physical punishment which violated both the law and LCMA's written policy on discipline. But the undersigned does not find that the corporal discipline at issue evinced malice or cruelty. The record, in short, convinces the undersigned to find that physical contact occurred, but not violent contact." Lincoln Marti, Case No. 16-6033, RO at 6.
The law found violated in Lincoln Marti was the blanket prohibition against spanking or any other form of physical/corporal punishment (i.e., the charge in the underlying action). However, in Lincoln Marti, the Department did not charge a violation of that law. Instead, the Department only charged the facility with violating the law prohibiting child abuse as defined in chapter 39, and the ALJ concluded that the charged violation was not proven. The ALJ contrasted the two different types of violations as follows:
As found above, [the children] did not suffer any physical injuries at the School on August 25, 2016. The statutory list of bodily injuries indicative of abuse (in section 39.01(30), quoted above) is instructive, nevertheless, for it draws a fairly clear clear line between (i) ordinary corporal punishment as that concept is commonly understood and
(ii) abusive corporal punishment as conceived under chapter 39.
Lincoln Marti, Case No. 16-6033, RO at 15.
Thus, in the child care facility regulatory setting, the Department's child discipline licensure standards impose a blanket prohibition against using any form of physical/corporal punishment, whether minor, mild, ordinary, or more severe. Such a blanket prohibition does not imply or require that injuries must, or be likely to, result. Not only is this policy reflected in the Department's rules, it is mandated by the applicable statute.
§ 402.305(12), Fla. Stat. (2017).
The same blanket prohibition exists in other regulatory settings, such as in the Department's licensure standards governing foster homes/parents, and the Department has applied the blanket prohibition the same way. An example is Department of Children and Family Services v. Cleveland and Harolean Roberts, Case No. 99-2204 (Fla. DOAH Dec. 1999; DCFS Feb. 2000), a disciplinary action brought against foster parents for violating the rule prohibiting use of corporal punishment. The ALJ found:
When the foster children in the Roberts' home misbehaved, they were disciplined. On occasion, when she believed circumstances warranted, Mrs. Roberts disciplined the children (just as she would her own grandchildren under similar circumstances) by hitting them on their hand with a wooden switch. There was no intention on her part to physically harm or injure the children, nor is there any persuasive evidence that she inflicted any such harm or injury. Mrs. Roberts merely wanted to get the children's attention and make
them realize that what they did was wrong and must not be repeated.
Roberts, Case No. 99-2204, RO at 5. The ALJ concluded that Mrs. Roberts violated the Department's child discipline rule providing that foster parents "must not use corporal punishment of any kind." The ALJ determined that this rule was violated even though the foster parent "did not intend to, nor cause, any harm or injury to the children." Roberts, Case No. 99-2204, RO at
Despite the absence of injury, the ALJ concluded that the violation raised serious questions regarding the foster parents' willingness to comply with licensing requirements, warranting revocation, rather than mere suspension, of the foster home license. Id.
For older children in kindergarten through twelfth grade, corporal punishment is sometimes permitted. See § 1003.32(1)(k), Fla. Stat. "'Corporal punishment' means the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule." § 1003.01(7), Fla. Stat. But the blanket prohibition against physical/corporal punishment as a disciplinary technique in child care facilities dictated by statute is a reflection of the legislative policy choice that for this age group, discipline should be both "age appropriate" and "constructive," and that any form of physical punishment is prohibited.
The Department's position in the underlying action had a reasonable basis in law. The charge was appropriately predicated on the licensing standards promulgated as rules that adopt a blanket prohibition against any form of physical punishment, which encompasses "ordinary" corporal punishment that does not result in injuries.
There was also a reasonable basis in law for the classification of the charged violation as a Class I violation. The Classification Summary document designates violations of section 2.8.A. and 2.8.F.1. of the Handbook as Class I violations. The Classification Summary document is incorporated by reference as a rule in rule 65C-22.010(1)(e)1. (October 2017). That rule
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 [Classification Summary document], which is incorporated by reference. … Class I violations are the most serious in nature."
Prior to the October 2017 amendment of rule 65C-22.010 and the Classification Summary document incorporated by reference, the rule definition of Class I violation imposed an additional requirement. The last sentence of the rule definition of Class I violation used to be as follows: "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." Fla. Admin. Code
R. 65C-22.010(1)(d)1. (August 2013) (emphasis added). The October 2017 rule amendment deleted the emphasized language from the definition of Class I violations, while moving the definition to paragraph (1)(e)1.11
As a result of this definitional change in October 2017, the proper classification of a violation as a Class I, II, or III violation is determined by the Classifications Summary document/rule as amended in October 2017.
The Classification Summary document, as amended in October 2017, provides that for only certain standards violations, proof of circumstances like the deleted rule language (i.e., that the violation could or does result in
11 The Recommended Order in the underlying action incorrectly cited rule 65C-22.010(1)(e)1. as providing that a Class I violation "is the most serious in nature and is one that could or does result in serious harm or death to a child." RO at 3 (emphasis added). The emphasized language paraphrased the rule language that was deleted in October 2017. Later, the Recommended Order incorrectly attributed the emphasized language to a definition of
Class I violation purportedly found in the Classification Summary document that is incorporated by reference in rule 65C-22.010(1)(e)1. According to the Recommended Order, such a definition is found in "Appendix A, Glossary, page 298 of the Classification Summary." (RO at 11). That is an incorrect reference. The Classification Summary document incorporated by reference as a rule and officially recognized in this case is a 28-page document with no appendix, no glossary, and no page 298. As of the October 2017 rule amendment process, there is no longer a rule definition of "Class I violation" that provides the emphasized language, either in Florida Administrative Code or in a document incorporated by reference as a rule in Florida Administrative Code.
death or serious harm) is required to designate the violation a Class I violation. That is not the case for all standards violations designated as Class I violations in the Classification Summary document.
As just one example, pursuant to the Classification Summary document, a violation of section 6.5.C. of the Handbook (related to prescription medication label requirements) is designated either as a Class I, II, or III violation, depending on the circumstances. A violation of section
6.5.C. is designated a Class I violation when written directions on the label were not followed and the child was given the wrong medication, "which posed an imminent threat and could or did result in death or serious harm to the health, safety, or well-being." Classification Summary document at 24,
40.8. A violation of the same standard in section 6.5.C. of the Handbook is designated a Class II violation when written directions on the label were not followed, but without the additional circumstance required for a Class I citation. Classification Summary document at 24, 40.6. Finally, a violation of the same Handbook standard, section 6.5.C., is designated a Class III violation where the circumstances are that medication brought to the facility for administration was not in its original container. Classification Summary document at 24, 40.4.
The Classification Summary document does not require the additional circumstance of an imminent threat, nor does it require that a violation "could or did result in death or serious harm to the health, safety, or well- being" for all Class I violations. Some, such as the violations of Handbook section 2.8.A. and 2.8.F.1., charged in the underlying action, are classified as Class I violations without any additional circumstances having to be shown. See Classification Summary document at 6, 11.4 and 11.6.
The Department's charge was reasonably based on the law in effect at the time of the incident. The classification of the violation as a Class I violation was proper based on the then-existing Classification Summary document, which was adopted as a rule and not challenged by My First Steps
in its hearing request as a defense to the Administrative Complaint, as authorized by the law then in effect. See § 120.57(1)(e)2., Fla. Stat. (2018).
In marked contrast to the underlying action, in the few cases in which an agency's action was found to lack a reasonable basis in law, there was a serious problem with regard to the agency's assertion of regulatory authority. Thus, in Casa Febe Retirement Home, Inc. v. Agency for Health Care Administration, 892 So.2d 1103, 1106 (Fla. 2d DCA 2004), the court determined that the agency lacked a reasonable basis in law where "AHCA claimed a violation of a rule that did not exist and ultimately tried to prove a violation of something else. … An agency cannot charge the facility with violating one rule and prove that the facility violated a rule not cited in the Administrative Complaint." More recently, in McCloskey v. Department of Financial Services, 172 So. 3d 973 (Fla. 5th DCA 2015), the court held that the Department of Financial Services did not have a reasonable basis in law for an administrative complaint charging an insurance agent who sold viatical settlement purchase agreements (viaticals) with selling unregistered securities without a securities license, when the statute defining viaticals as securities was adopted after the viaticals were sold, and where case law suggesting viaticals were securities also came out after the viaticals were sold. Here, there is no question that the Department has regulatory authority over My First Steps; that it has a statutory mandate to adopt licensing standards prohibiting child discipline that is frightening or that uses any form of physical punishment; and that it had implementing rules in effect mandating those prohibitions.
As a precursor to revoking or suspending a license or taking other penal action against a licensee, an agency must give the licensee notice in the form of an administrative complaint that contains allegations of the facts relied on and citations to the law allegedly violated; such notice is required by both the Administrative Procedure Act and due process. See § 120.60(5), Fla. Stat.; Christian v. Dep't of Health, 161 So. 3d 416, 417 (Fla. 2d DCA 2014);
Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). There is no requirement, however, for the prosecuting agency to specify the proposed penalty it is seeking. Instead, as demonstrated by cases such as Christian and Cottrill, the appropriate penalty to be imposed is a function of the agency's statutory authority as applied to the facts both alleged and proven in an administrative hearing, which establish violations of law that were charged in an administrative complaint.
In the underlying action, in addition to setting forth the alleged facts relied on and citations to the law allegedly violated, the Administrative Complaint also included the penalty proposed by the Department for the charged violation. The Department proposed a fine of $500.00, but no additional sanctions such as license probation, suspension, or revocation.
Section 402.310(1)(a) authorized the Department to impose any of the following disciplinary sanctions for a violation of sections 402.301 through
402.319 or the rules adopted thereunder: administrative fines, probationary license status, license suspension, or license revocation. Section 402.310(1)(a)1. provided that administrative fines generally may not exceed
$100 per violation, per day. "However, if the violation could or does cause death or serious harm, the department … may impose an administrative fine, not to exceed $500 per violation per day." Thus, the Department could not have imposed the proposed fine without proof that the incident did, or could have, caused death or serious harm. Admittedly, the incident did not actually result in serious harm or death. It is perhaps arguable that the rough handling of A.M. "could" have resulted in serious harm. But the proposed penalty in the Administrative Complaint is its weak point.
Ultimately, if the charged violation had been found, the appropriate penalty would have been addressed upon consideration of case-specific factors enumerated in section 402.310(1)(b). Here, however, no violation was found, so there were no findings addressing an appropriate penalty. That the Department's proposed penalty ultimately may not have been accepted, had a
violation been found, does not detract from the reasonable basis in fact and law for issuing the Administrative Complaint.
The Department established that it had a reasonable basis in fact and law for issuing the Administrative Complaint. The Department proved that the initiation of the underlying action was substantially justified. As such, My First Steps is not entitled to an award of attorney's fees and costs for the underlying action.
Special Circumstances
Based on the Findings of Fact above, the Department also met its burden of proving its alternative defense that special circumstances exist which make an award of attorney's fees and costs unjust.
Unlike the "substantially justified" defense, there is no statutory definition or elaboration of the "special circumstances" defense. One difference evident from the language used for the "special circumstances" defense is that it is couched in the present tense: the question presented is whether "special circumstances exist," not whether special circumstances "existed."
No guidance was found in Florida appellate decisions regarding this defense, but there are at least a few federal decisions under the federal counterpart law which served as a model for the FEAJA. See 5 U.S.C. § 504; 28 U.S.C. § 2412 (Federal EAJA). As recognized in cases addressing the FEAJA, it is appropriate to consider federal decisional law construing provisions in the federal law that are mirrored in the FEAJA. See, e.g., Gentele v. Dep't of Prof'l Reg., 513 So. 2d 672, 673 (Fla. 1st DCA 1987).
In Oguachuba v. Immigration and Naturalization Service, 706 F.2d 93, 98 (2d Cir. 1983), the court held that the "special circumstances" exception "explicitly directs a court to apply traditional equitable principles in ruling upon an application for counsel fees by a prevailing party." While the court assumed that the government's action at issue was not substantially justified, the court "fully agree[d] with the district court that
Oguachuba's misconduct constitutes a special circumstance rendering an award of attorneys' fees unjust. … In classic equity terms, Oguachuba is without clean hands." Oguachuba, 706 F.2d at 98-99.
As more recently noted by the same court in Vincent v. Commissioner of Social Security, 651 F.3d 299 (2d Cir. 2011):
The EAJA's "special circumstances" exception is a "safety valve" that gives the court discretion to deny awards where equitable considerations dictate an award should not be made. The contours of that safety valve are indistinct.
651 F. 3d at 303 (citations omitted). The court in Vincent observed that it had only addressed the special circumstances exception twice in published opinions. Special circumstances had been found in Oguachuba, based on the petitioner's own misconduct preceding the government action that gave rise to the FEAJA claim for an award of fees and costs. And in United States v.
27.09 Acres of Land, 43 F.3d 769 (2d Cir. 1994), FEAJA fees were denied under the special circumstances of the underlying action itself, where the petitioner played only a marginal role in the litigation, making an award of fees and costs unjust. But as the court explained: "These two examples of 'special circumstances' do not define the exception. Indeed, if the 'special circumstances' exception is to function as an equitable 'safety valve,' its contours can emerge only on a case-by-case basis." Vincent, 651 F.3d at 304.
The theme of "'unclean hands' pervades the jurisprudence of 'special circumstances' under [the Federal] EAJA." Air Transport Ass'n of Canada v. F.A.A., 156 F.3d 1329, 1333 (D.C. Cir. 1998).
In a case most factually similar to this case with regard to special circumstances, Fakhri v. United States, 507 F. Supp.2d 1305 (Ct. Int'l Trade 2007), a plaintiff's unclean hands were determined to be "special circumstances" under the FEAJA exception, and an award of attorney's fees and costs was denied. The special circumstances found that made an award of fees and costs unjust were that during the course of the FEAJA litigation
itself, the plaintiff had “made a series of misrepresentations to th[e] court by failing to disclose the existence of its corporation, a piece of information bearing on the central issue in th[e] litigation.” Fakhri, 507 F. Supp.2d at 1321. The court held that the plaintiff "is without clean hands and is thus barred from recovering under the statute." Id.
So too, throughout the investigation and the underlying action, Ms. Piovera made misrepresentations and inconsistent statements to the investigators and to the ALJ bearing on a central issue in both the investigation and the litigation. Her misrepresentations and inconsistent
statements appear to have succeeded in planting the seed of doubt as to the reliability of the video that was central to the underlying action, which may well have infected the outcome in the underlying action. Ms. Piovera's unclean hands constitute special circumstances, making an award of attorney's fees and costs unjust.
If My First Steps were entitled to an award of attorney's fees and costs, the reduced amount of its claim, as set forth in its Proposed Final Order, of $7,015.00 for attorney's fees and $507.88 for costs, for a total award of $7,523.88, would be reasonable and under the cap in section 57.111.
However, either one of the Department's defenses established in this case require denial of an award of attorney's fees and costs.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Application by Petitioner, My First Steps of Bradenton, Inc., for an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes, is DENIED.
DONE AND ORDERED this 25th day of June, 2020, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
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 25th day of June, 2020.
COPIES FURNISHED:
Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z
1317 Winewood Boulevard
Tallahassee, Florida 32399-0700 (eServed)
Philip J. Lipten, Esquire Philip J. Lipten PA
Post Office Box 141338 Orlando, Florida 32814-1338 (eServed)
Lisa Ajo, Esquire
Department of Children and Families 9393 North Florida Avenue, Suite 900
Tampa, Florida 33625 (eServed)
Jed Berman, Esquire Infantino and Berman Post Office Box 30
Winter Park, Florida 32790 (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 JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 25, 2020 | DOAH Final Order | The Department?s Administrative Complaint was substantially justified when issued. Special circumstances also exist that would make an award unjust. Either showing dictates denial of an award of fees and costs under s. 57.111. |
