Elawyers Elawyers
Washington| Change

DR. D.D. BROWN CHRISTIAN ACADEMY OF HOPE vs DEPARTMENT OF CHILDREN AND FAMILIES, 19-005807 (2019)

Court: Division of Administrative Hearings, Florida Number: 19-005807 Visitors: 83
Petitioner: DR. D.D. BROWN CHRISTIAN ACADEMY OF HOPE
Respondent: DEPARTMENT OF CHILDREN AND FAMILIES
Judges: SUZANNE VAN WYK
Agency: Department of Children and Family Services
Locations: Gainesville, Florida
Filed: Oct. 30, 2019
Status: Closed
Recommended Order on Wednesday, September 2, 2020.

Latest Update: Dec. 25, 2024
Summary: Whether Respondent’s1 religious exemption from licensure as a child care facility, pursuant to section 402.316, Florida Statutes, should be revoked as alleged in the Administrative Complaint dated March 18, 2019.Petitioner proved that cook who provided meals for both daycare and private K-12 school was "child care personnel" subject to background screening requirements; Petitioner did not prove same with respect to member of board of directors.
SKM_C36821021116400


STATE OF FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES


DEPARTMENT OF CHILDREN AND FAMILIES,

FILED

FEB 11 2021

OCF Department Clerk


Petitioner,

v.

CASE NO. 19-5806

RENDITION NO. DCF-21-25,_-FO


_

DR. D.D. BROWN CHRISTIAN ACADEMY OF HOPE,


Respondent.

/

DR. D.D. BROWN CHRISTIAN ACADEMY OF HOPE,


CASE NO. 19-5807


Petitioner,


v.


DEPARTMENT OF CHILDREN AND FAMILIES,


Respondent.

- - - - - - - - - - - - - - ----'

FINAL ORDER

THIS CAUSE is before me for entry of a final order concerning two Department of Children and Families ("Department") actions. The first action concerned a March 18, 2019, Administrative Complaint notifying Dr. D.D. Brown Christian Academy of Hope ("Respondent" or "Academy") that it intended to revoke Respondent's religious

ex·empti on for a child care facility based on its failure to comply with required background screenings of child care personnel. The second action involved a May 23, 2019, Notice of Denial of Respondent's intent to operate as a child care facility under the religious exemption provisions. The two cases were consolidated pursuant to a November 13, 2019, Order of Consolidation.


1


Filed February 12, 2021 12:49 PM Division of Administrative Hearings

In the Recommended Order issued on September 2, 2020, the Administrative Law Judge ("ALJ") recommended upholding the Department's actions in both cases. However, in case 19-5806, the ALJ found that the Department only proved the violation of background screening requirements in respect to Jeannette Crowell but not Errol Washington .

Both the Department and Respondent filed exceptions to the Recommended Order, and the Respondent filed a response to the Department's exceptions.

EXCEPTIONS


Respondent takes exception to Paragraph 21 of the Findings of Fact and Paragraph 64 of the Conclusions of Law.

21. Ms. Brinkley again visited the facility on April 3, 2019, and observed Ms. Crowell interacting with children from the daycare. On that date, Ms. Crowell's employee file again contained no documentation of a required background screening. Footnote 3: The record was insufficient to establish whether Ms. Crowell has subsequently undergone the background screening process and, if so, whether she has been found eligible to work in child care.

64. By employing Ms. Crowell without the required background screening and allowing her to work in the daycare, Respondent violated section 402.316. The statute provides that failure of a facility to comply with background screening requirements, "shall result in the loss of the facility's exemption from licensure."

§ 402.316, Fla. Stat. The statute does not afford discretion either to the Department or undersigned. Footnote 8: However, if Ms. Crowell has subsequently undergone the required background screening and has been found eligible to work in child care, the Department may consider that fact with determining how to act on this Recommended Order.

Respondent argued in this exception that "[the] record and filings established that Mrs. Jeanette Crowell had completed a background check. The Respondent argued, and maintains, that Mrs. Jeanette Crowell has completed a background check and was determined eligible as far back as March 25, 2019." Respondent included attachments to its written exceptions and points to "Attachment 1," which appears to be a

clearinghouse background screening person profile of a "Jeannette Crowell." This attachment cannot be considered in this final order as it wa13 not presented as evidence during the hearing before the ALJ.

Exceptions should not attempt to introduce new evidence, as it is error to


supplement the record through post-hearing testimony. Florida Department of


Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 784 (Fla. 1st DCA 1984); See


also Lawnwood Medical Center, Inc. v. Agency for Health Care Administration, 678


So.2d. 421, 425 (Fla. 1st DCA 1996). Additionally, the Court in Collier Medical Ctr.. Inc.


v. Department of HRS held that "[t]o allow a party to produce additional evidence after the conclusion of an administrative hearing below would set in motion a never-ending process of confrontation and cross-examination, rebuttal and surrebuttal evidence, a result not contemplated by [Chapter 120]." 462 So.2d 83, 86 (Fla. 1st DCA 1985).

Respondent next points to its response to the Motion for Summary Judgment and Request for Hearing in which its asserts that Ms. Crowell had completed a Level 2 background screening; neither of which were introduced as evidence at the hearing.

Respondent's assertions do not become evidence merely by putting them in a filing that is part of the case record.

Respondent also argues that in its Response to the Requests for Admissions , it states that Ms. Crowell ha been entered in the Clearinghouse. In the Requests for Admissions, paragraph 10 stated, "At the time of the inspection Ms. Crowell did not have a level 2 background screening through the Clearinghouse as required by ss.

402.305(2) and 435.12, Fla. Stat. Respondent responded in "Petitioner's [sic] Response to the Requests for Admissions" paragraph 10: To the Department's

paragraph 10, the Respondent dispute [sic] and deny that Jeanette Crowell was an employee of the childcare facility but that.she was eventually placed in the Clearinghouse. There is nothing in Respondent's response to this request for admission that would prove that the ALJ's finding and conclusions in Paragraphs 21 are not supported by competent substantial evidence.

Finally, the ALJ's findings regarding Ms. Brinkley's testimony are supported by competent substantial evidence as found in the hearing transcript. Tr. at 56-58 and 86. As the Finding of Facts in Paragraph 21 and the Conclusions of Law in Paragraph 64 are supported by competent substantial evidence and the relevant law, this exception is

denied.


The Department takes exception to Paragraph 25 and Footnote 4 of the Findings of Fact.

25. Mr. Washington is the Vice President and a member of the Board of Directors of the Church. He testified that he is an employee of the Church, rather than the Academy. Footnote 4: The record is insufficient to establish the business relationship between the Church and the Academy. Presumably, the Academy is a wholly-owned subsidiary of the Church.

The Department argues in this exception, "[t]here is competent substantial evidence to support findings. that the Academy and the Church are the same legal entity and that Mr. Washington's employment with the Church, which included duties specific to the legal obligations and operation of the Academy, is equivalent to employment with the Academy." To support its argument that the Academy and the Church are the same legal entity, the Department points to Mr. Washington's testimony, Mr. Washington testified that the Church and the Academy are not separate and distinct legal entities. Tr. at 113-114 and 116).

Additionally, in 2012, the Church and Mr. Washington took action to ensure that the Church maintained all of the power regarding any legal obligations stemming from the Academy and that the power to sign all of the documents was the responsibility of Mr. Washington. Tr. at 116-119. He testified that it is his responsibility to sign documents that legally obligate the Church which includes signing the Academy's documents. Tr. at 114. In addition to signing documents, Mr. Washington was present during inspections conducted by Department staff during operating hours while children are present. Tr. at 53, 82,

During those inspections, Department staff were referred to speak with Mr. Washington and he assisted with providing documents from files maintained for the Academy's employees and children. Tr. at 55. He is also able to view what is going on in the Academy through video equipment kept in his office. Tr. at 55-56. In addition to being the person Department staff were referred to speak with during inspections, when the Department needed to contact the Academy, they emailed Mr. Washington directly. Tr. at 55. And finally, Mr. Washington testified he was present at inspections to ensure compliance with any violations that were identified. Tr. at 122.

After a careful review of the record, the Department has shown that the footnote to Paragraph 25, Footnote 4, is not supported by competent substantial evidence; this

exception is granted.


Paragraph 25 of the Findings of Fact and Footnote4 are revised as follows:


25. Mr. Washington is the Vice President and a member of the Board of Directors of the Church. He testified that he is an employee of the Church, rather than the Academy. Footnote 4: The record is sufficient to establish the business relationship between the Church and the Academy.

The Department takes exception to Paragraphs 54 and 63 of the Conclusions of


54. The Department did not prove that Mr. Washington is child care personnel.

63. The facts do not support a finding that Mr. Washington works in the daycare. Mr. Washington's role with respect to the daycare is limited to authorizing contracts and other instruments obligating the Church financially and otherwise. Mr. Washington is employed by the Church, and in that capacity, has responsibilities for all the entities owned or operated by the Church, whether in Ocala or Texas.

The Department argues in these exceptions that there is competent substantial evidence to support a finding that Mr. Washington is an employee of the Academy which means that he meets the definition of child care personnel. As argued and cited more thoroughly in the exception to Paragraph 25 and Footnote 4, the Department argues that the Academy and the Church are the same legal entity, and Mr. Washington is responsible for conducting business for the Academy in regards to incurring legal liabilities which includes interacting with outside entities on behalf of the Academy, participating and answering Department questions during inspections, ensuring compliance with issues noted during inspections, serving as the Academy contact for the Department, and entering into contracts with the Early Learning Coalition.

The Department further argues that the requirement that the individual work in the child care facility does not limit the amount of work that the individual does, nor does it specifically require contact with children. The definition does allow for an exception for individuals that work in a child care facility after hours when children are not present. The Department argues this exception further supports that an individual that performs and works in the child care facility during operation hours when children are present is subject to background screening.

The Department has demonstrated in these exceptions that the ALJ's findings are not supported by competent substantial evidence and is a misapplication of

statutory definitions. This exception is granted.


Paragraphs 54 and 63 of the Conclusions of Law are rewritten as follows, which I find to be as or more reasonable than the rejecte d paragraphs:

54. The Department did prove that Mr. Washington is child care personnel.

63. The facts do support a finding that Mr. Washington works in the daycare. Mr. Washington's role with respect to the daycare is not limited to authorizing contracts and other instruments obligating the Church financially and otherwise. Mr. Washington is an employee of the Academy.


Accordingly, the Recommended Order is approved and adopted as modified and the Department's March 18, 2019, Administrative Complaint and May 23, 2019, Notice of Denial of Respondent's intent to operate as a child care facility under the religious exemption provision are UPHELD.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this //fti day of

!l/

l-iJru,-7.r ,20 2. 1 . ·

NOTICE OF RIGHT TO APPEAL


THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY A PARTY PUSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH APPEAL IS INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF CHILDREN AND FAMILIES AT 1317 WINEWOOD BOULEVARD, BUILDING 2, ROOM 204, TALLAHASSEE, FLORIDA 32399-0700, AND A SECOND COPY ALONG WITH THE FILING FEE AS PRESCRIBED BY LAW, IN THE DISTRICT COURT OF APPEAL WHERE THE PARTY RESIDES OR IN THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL MUST BE FILED (RECEIVED) WITHIN 30 DAYS OF RENDITION OF THIS ORDER.1


Copies furnished to the following via Electronic Mail on date of Rendition of this Order.1


Stefanie Camfield, Esq. Assistant General Counsel

Department of Children and Families Stefanie.Camfield@myflfamilies.com Counsel for the Department


Erroll Washington

Dr. D.D. Brown Christian Academy of Hope ddbcaoh@gmail.com

Pro Se Respondent

Claudio Llado, Clerk

Division of Administrative Hearings Three DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32301



1 The date of the "rendition" of this Order is the date that is stamped on its first page.


Docket for Case No: 19-005807
Issue Date Proceedings
Sep. 07, 2021 Motion for Extension of Time to File Initial Brief Due to Respondent and Appellant in Settlement Negotiations filed.
Aug. 19, 2021 Appellee's Motion to Relinquish Jurisdiction filed.
Aug. 19, 2021 New Notice of Agreed Extension of Time to File Initial Brief filed.
Jul. 30, 2021 Second Amended Notice of Agreed Extension of Time to File Initial Brief filed.
Jul. 28, 2021 Amended Notice of Agreed Extension of Time to File Initial Brief (to correct Scrivener's error) filed.
Jul. 27, 2021 Notice of Agreed Extension of Time to File Reply Brief filed.
Jun. 23, 2021 Notice of Second Agreed Extension of Time to File Initial Brief filed.
Apr. 12, 2021 Directions to Clerk filed.
Apr. 07, 2021 Notice of Appearance (Clifford Taylor) (filed in Case No. 19-005807).
Apr. 07, 2021 Notice of Appearance (Clifford Taylor) filed.
Feb. 12, 2021 Respondent's Opposition to the Recommended Order filed by the Department of Families and Children Services (filed in Case No. 19-005807).
Feb. 12, 2021 Respondent's Exception to the Recommended Order (filed in Case No. 19-005807).
Feb. 12, 2021 Petitioner's Exceptions to the Recommended Order (filed in Case No. 19-005807).
Feb. 12, 2021 Respondent's Opposition to the Exceptions to the Recommended Order filed by the Department of Families and Children Services.
Feb. 12, 2021 Respondent's Exceptions to the Recommended Order filed.
Feb. 12, 2021 Petitioner's Exceptions to the Recommended Order filed.
Feb. 12, 2021 Agency Final Order filed.
Feb. 12, 2021 Agency Final Order filed.
Feb. 12, 2021 Agency Final Order filed. (Filed in Case No. 19-5807)
Feb. 12, 2021 Agency Final Order filed. (Filed in Case No. 19-5806)
Sep. 02, 2020 Recommended Order (hearing held March 12, 2020). CASE CLOSED.
Sep. 02, 2020 Recommended Order cover letter identifying the hearing record referred to the Agency.
Sep. 01, 2020 Order Denying Motion for Extension of Time and Motion to Supplement the Record.
Sep. 01, 2020 Motion to Expand the Record (filed in Case No. 19-005807).
Sep. 01, 2020 Respondent's Proposed Recommended Order (filed in Case No. 19-005807).
Sep. 01, 2020 Motion to File Proposed Recommended Order out of Time (filed in Case No. 19-005807).
Aug. 20, 2020 Respondent's Proposed Recommended Order filed.
Jul. 31, 2020 Order Granting Extension of Time.
Jul. 30, 2020 Unopposed Motion for Extension of Time filed.
Jul. 13, 2020 Order Granting Extension of Time.
Jul. 10, 2020 Unopposed Motion for Extension of Time filed.
Jun. 30, 2020 Notice of Filing Transcript.
Jun. 29, 2020 Transcript of Proceedings (not available for viewing) filed.
Jun. 18, 2020 Order Closing Record.
Jun. 17, 2020 Respondent's Proposed Exhibit 1 filed (exhibits not available for viewing).
Jun. 11, 2020 Respondent's Proposed Exhibits filed (exhibits not available for viewing). 
 Confidential document; not available for viewing.
Jun. 11, 2020 CASE STATUS: Hearing Held.
Jun. 10, 2020 Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
Jun. 01, 2020 Amended Notice of Hearing by Zoom Conference (hearing set for June 11, 2020; 9:00 a.m.; Gainesville; amended as to Hearing Type).
May 29, 2020 Petitioner's Amended Emergency Motion for Hearing by Video Teleconference filed.
May 29, 2020 Petitioner's Emergency Motion for Hearing by Video Teleconference filed.
May 28, 2020 Procedural Order.
May 18, 2020 Procedural Notice.
May 18, 2020 Notice of Appearance (Javier Enriquez) filed.
Apr. 10, 2020 Order Granting Continuance and Rescheduling Hearing by Video Teleconference (hearing set for June 11, 2020; 9:00 a.m.; Gainesville and Tallahassee, FL).
Apr. 08, 2020 CASE STATUS: Pre-Hearing Conference Held.
Apr. 08, 2020 Notice of Telephonic Pre-hearing Conference (set for April 8, 2020; 1:00 p.m.).
Apr. 06, 2020 Petitioner's Emergency Motion for Pre-Hearing Conference Call filed.
Apr. 03, 2020 (Corrected) Petitioner's Additional Witness filed.
Apr. 03, 2020 Petitioner's Witnesses and Exhibits (signed) filed.
Apr. 03, 2020 Petitioner's Additional Witness filed.
Mar. 12, 2020 CASE STATUS: Hearing Partially Held; continued to April 14, 2020; 9:00 a.m.; Tallahassee, FL.
Mar. 12, 2020 Amended Notice of Hearing by Video Teleconference (hearing set for April 14, 2020; 9:00 a.m.; Gainesville and Tallahassee, FL; amended as to Date).
Mar. 11, 2020 Motion for Continuance filed.
Mar. 06, 2020 Petitioner's Witnesses and Exhibits filed.
Mar. 06, 2020 Petitioner's Response to the Requests for Admissions filed.
Jan. 16, 2020 Notice of Appearance (Ivory Avant) filed.
Dec. 30, 2019 Petitioner's Request for Admissions filed.
Dec. 02, 2019 Order of Pre-hearing Instructions.
Dec. 02, 2019 Notice of Hearing by Video Teleconference (hearing set for March 12, 2020; 9:00 a.m.; Gainesville and Tallahassee, FL).
Nov. 26, 2019 Department's Response to Initial Order filed.
Nov. 18, 2019 Order Granting Extension of Time.
Nov. 15, 2019 Department's Motion to Extend Time to Respond to Initial Order filed.
Nov. 08, 2019 Motion to Consolidate filed.
Nov. 01, 2019 Initial Order.
Oct. 30, 2019 Notice of Denial filed.
Oct. 30, 2019 Statement Regarding Administrative Hearing filed.
Oct. 30, 2019 Notice (of Agency referral) filed.

Orders for Case No: 19-005807
Issue Date Document Summary
Feb. 11, 2021 Agency Final Order
Feb. 11, 2021 Agency Final Order
Sep. 02, 2020 Recommended Order Petitioner proved that cook who provided meals for both daycare and private K-12 school was "child care personnel" subject to background screening requirements; Petitioner did not prove same with respect to member of board of directors.
Source:  Florida - Division of Administrative Hearings

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer