STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

Case No. 20-3754

vs.

STARCHILD ACADEMY WEKIVA,

Respondent.

/

RECOMMENDED ORDER

The final hearing in this matter was conducted before Administrative Law Judge Jodi-Ann V. Livingstone of the Division of Administrative Hearings (DOAH), on February 9, 2021, by Zoom Conference.

APPEARANCES

For Petitioner: Brian Christopher Meola, Assistant General Counsel Department of Children and Families

400 West Robinson Street, Suite S-1129 Orlando, Florida 32801

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

For Respondent: Lucia C. Pineiro, Esquire

Lucia C. Pineiro & Associates, P.A.

717 Ponce de Leon Boulevard, Suite 309 Coral Gables, Florida 33134

STATEMENT OF THE ISSUES

Whether Respondent, a licensed child care facility, committed two Class I violations as alleged in the Administrative Complaint; and, if so, the appropriate penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.

PRELIMINARY STATEMENT

On July 10, 2020, the Department of Children and Families (Department or Petitioner) issued an Administrative Complaint against StarChild Academy Wekiva (StarChild or Respondent), in which it alleged that StarChild committed two Class I violations of the Child Care Licensing Standards, as incorporated by reference in Florida Administrative Code Rule 65C-22.010(1)(e)1. For the alleged violations, the Department sought to impose a fine of $1,000.00.

In a Response to Administrative Complaint and Request for Administrative Hearing, StarChild timely disputed the allegations and requested a disputed-fact hearing. The Department transmitted the matter to DOAH on August 18, 2020, for the assignment of an administrative law judge.

At the final hearing, the Department presented the testimony of Shakira Alexander, Kurt Jones, Meghan Jones, and David Meconitas. The Department's Exhibits A through D were admitted into evidence, without objection. StarChild presented the testimony of David Meconitas, Shelby Feinberg, Deborah Files, Margarita Diaz, Zuleika Martinez, Ida Lewis, Danny King, and Nadia Engwall. StarChild's Exhibits 1 through 18 were admitted into evidence, without objection.

At the close of the hearing, the parties requested an extended deadline of 30 days following DOAH's receipt of the hearing transcript to file post- hearing submittals.1 A two-volume Transcript of the final hearing was filed with DOAH on March 25, 2021. Both parties timely submitted Proposed Recommended Orders, which were duly considered in preparation of this Recommended Order.

All references to the Florida Statutes are to the 2019 version, unless otherwise noted. All references to the Florida Administrative Code are to the versions that were in effect at the time of the alleged violations.

FINDINGS OF FACT

1. The Department is the state agency responsible for licensing and regulating child care facilities in the state in Florida.

2. StarChild is a licensed child care facility located in Apopka, Florida. StarChild is designated as a Gold Seal Provider and has a contract with the Early Learning Coalition to provide school readiness services.

3. As a designated Gold Seal Quality Care Provider, StarChild is subject to the provisions of section 402.281, Florida Statutes.

4. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility must not have had any Class I violations, as defined by rule, within the two years preceding its application for designation as a Gold Seal Quality Care provider. § 402.281(4)(a), Fla. Stat.

5. "Commission of a Class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no Class I violations for a period of two years." § 402.281(4)(a), Fla. Stat.

   
   

   
   

   1 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 timeframe for issuance of the Recommended Order. See Fla. Admin. Code R. 28-106.216.

   
   

6. As of the date of the final hearing, StarChild had never had a Class I violation.

   The May 5, 2020, Incident

7. At all times relevant to this case, CJ was a two-year-old boy who attended StarChild.

8. On May 5, 2020, CJ, along with several other children and two teachers, were in a two-year-old classroom at StarChild. The actions of the children and a teacher, Ms. Crisman, were recorded by a surveillance camera mounted in the room. The factual allegations in the Administrative Complaint are primarily based on an incident captured on video.

9. In the video, CJ is seen interacting with other children in the room. The children are all engaged in different activities; some are standing while others are sitting on the floor. CJ stood near a group of children who were sitting on the floor in close proximity to Ms. Crisman, who also sat on the floor.

10. CJ walked up behind another child who sat in front of Ms. Crisman. CJ placed his hands on the other child's shoulders. The other child turned his torso toward CJ, while still sitting, and pushed CJ away from him. This was by no means a hard push. CJ stumbled into a seated position and then immediately thereafter laid on his back. CJ remained laying on his back for approximately five to ten seconds, during which he playfully kicked his feet.

11. Ms. Crisman stood up from her seated position, walked over to CJ, and stood over him. She then grabbed CJ by both wrists and forcefully yanked him off the ground.

12. It is clear from the video that Ms. Crisman used great force when she pulled CJ off the floor—CJ's feet flew up in the air and his head flew back. Ms. Crisman then pulled CJ, by his wrists, approximately ten feet across the room, and placed him in a corner in timeout. CJ sat in the corner clutching his arm.

    
    

13. Zuleika Martinez (Ms. Martinez) was one of the two teachers assigned to CJ's classroom. She was not present during the incident, but came back to see CJ sitting in timeout. Ms. Martinez noticed that CJ was favoring one hand over the other. Approximately 30 minutes after noticing this,

    Ms. Martinez notified Deborah Files (Ms. Files).

14. Ms. Files has been employed by StarChild since March 2005, and has been serving as the Director of StarChild since April 2020.

15. Ms. Files walked over to the classroom to check on CJ and speak to Ms. Martinez. She learned that CJ was holding his arm and he would not use it for play or to eat.

16. Ms. Files brought CJ into StarChild's front-desk area—the area typically used for children who are not feeling well. Ms. Files iced CJ's arm.

17. Shortly thereafter, Ms. Files contacted Shelby Feinberg

    (Ms. Feinberg). At the time of the incident, Ms. Feinberg was the Executive Director of StarChild. Ms. Feinberg was working remotely and, therefore, not at StarChild's facility. Ms. Files explained to Ms. Feinberg that CJ appeared to be having difficulty utilizing one of his arms. Ms. Feinberg advised

    Ms. Files to contact CJ's parents.

18. Ms. Files contacted CJ's mother, Meghan Jones, at approximately 11:00 a.m. Ms. Files reported to the mother that CJ was favoring one arm, and that he was not using the other arm at all. Ms. Files encouraged

    Ms. Jones to pick CJ up.

19. At approximately 12:30 p.m., CJ's father, Kurt Jones (Mr. Jones), arrived at StarChild to pick CJ up. Mr. Jones found CJ in the classroom, lying on the floor. He told CJ to get up. CJ attempted to push himself up off the floor but was unable to do so. CJ appeared to be in pain and unable to support his body weight on his arm. It was clear to Mr. Jones that his son was in pain. Mr. Jones had difficulty getting CJ strapped into his car seat. Mr. Jones drove CJ to their home, which was five minutes away.

    
    

20. When at home, Mr. Jones noticed that CJ still appeared to be in pain. Mr. Jones noticed that CJ would not move or touch his arm. He was holding his arm as if it was in a sling. CJ would periodically cry.

21. Mr. Jones grew worried as his son still appeared to be in pain and did not seem to be getting better as time passed. Mr. Jones considered taking CJ to the emergency room but decided against it because of concerns related to the COVID-19 pandemic. He could not take CJ to his primary care pediatrician as there were scheduling difficulties also tied to the COVID-19 pandemic. The family's usual after-hours urgent care pediatrics office did not open until 4:00 p.m.

22. At approximately three or four hours after picking CJ up from StarChild, Mr. Jones, with few options, searched for help on the internet. He researched possible causes of CJ's pain and why he was holding his arm like a sling. After watching several videos, he came across a YouTube video made by a nurse who described a condition called "nursemaid elbow." A nursemaid elbow is a dislocated elbow. The symptoms matched what CJ was experiencing and Mr. Jones determined CJ had dislocated his elbow. The video provided instructions on how to correct the nursemaid elbow.

23. Desperate to help his son who was still in pain, he attempted the procedure to put CJ's elbow back in place. Mr. Jones followed the instructions. He heard a "pop" noise, which was to be expected per the instructions in the video. CJ cried for ten to 15 seconds. Thereafter, CJ regained full mobility of his arm and no longer appeared to be in pain. CJ began acting like his typical self.

24. The next day, Mr. and Mrs. Jones took CJ to his pediatrician. CJ was diagnosed with nursemaid elbow. They were advised that the procedure that Mr. Jones conducted the previous day was the correct one.

25. The Department conducted an investigation of the incident. As part of its investigation, the Department scheduled an examination of CJ by its Child Protective Team (CPT).

    
    

26. Margarita Diaz (Nurse Diaz) is a pediatric nurse practitioner who works for CPT. She has been with CPT for three years. She has received extensive training in child abuse. On May 7, 2020, she did a complete head- to-toe examination of CJ. She reviewed the history of CJ's injury provided by CJ's parents and collateral information which included the video of the incident. She diagnosed CJ as having suffered a nursemaid elbow due to child abuse.

27. Nurse Diaz described a nursemaid elbow as a condition that occurs when the ligament in the elbow gets trapped between two bones. When a child's arm is pulled away, the tendon slips down. When the arm goes back into place, the tendon gets stuck between the humerus and the radial bones. When this condition happens, it is usually very painful for the child. The child often presents as protective of the arm and will not move it.

28. Nurse Diaz further testified that the most common mechanism of injury is when a child is pulled. Other mechanisms for injury include swinging or lifting a child by the arm. She testified that a nursemaid elbow is easy to correct and once corrected, a child is back to normal in five to ten minutes.

29. Nurse Diaz testified that her finding of child abuse was based on her observations of the actions of the teacher as shown in the video. She confirmed that the actions of the teacher in the video were consistent with the infliction of a nursemaid elbow injury on CJ.

    StarChild's Response to Incident

30. When Ms. Martinez reported CJ's injury, StarChild took immediate action to address the situation. They removed CJ from the classroom, tended to his injuries, promptly contacted his parents, and set out to find out the cause of the injury.

31. StarChild administrators watched video footage of the activity leading up to CJ's change in behavior. In reviewing the video, StarChild determined that Ms. Crisman used improper form by lifting CJ by his wrists when

    
    

    moving CJ to the timeout corner. By noon on the same day of the incident, StarChild terminated Ms. Crisman's employment. StarChild then contacted the Department to report the incident.

32. Mr. Jones made a request to review video footage of the incident. Danny King, the owner of StarChild, reached out to Mr. Jones personally and agreed to meet with him and Mrs. Jones to review the video together in person. The parents were informed that Ms. Crisman was terminated.

33. Following the incident, StarChild developed a self-imposed Corrective Action Plan, that included re-training its entire staff. Ms. Feinberg met with all members of the staff and conducted in-person training in small class settings. All staff members were provided StarChild's discipline policy and child interaction policies. Staff members were also required to take a child abuse and training course. StarChild re-wrote its staff handbook to include stronger and clearer language about how children are to be moved and repositioned in the classroom. Additionally, StarChild implemented permanent policy changes which required discussions during weekly staff meetings about behavior and how staff members should positively deal with behavior in the classroom. All staff members were also provided with information on nursemaid elbow, specifically.

34. StarChild has current plans to bring in guest speakers, such as a behavior management professional and a CPT speaker, to further educate their staff members.

35. StarChild acted commendably in response to the incident. It took immediate and comprehensive action to try to reduce the probability of an incident like that occurring again. It must be noted that complete prevention is an impossibility.

36. CJ continued to attend StarChild after the incident. Indeed, he attended StarChild the day after the incident and appeared to be in good spirits. CJ's younger sister was also enrolled at StarChild after the incident, when she was three-and-a-half months old.

    
    

    CONCLUSIONS OF LAW

37. DOAH has jurisdiction over the parties and the subject matter of this cause pursuant to sections 120.569 and 120.57(1), Florida Statutes (2020).

38. The Administrative Complaint sets forth allegations that StarChild committed two Class I violations of rule 65C-22.010(1)(e)1., and seeks to impose discipline against StarChild's license.

39. A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence. Fox v. Dep't of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)).

40. The clear and convincing standard of proof has been described by the Florida Supreme Court as follows:

    Clear and convincing evidence requires that evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). "Although this standard of proof may be met where the evidence is in conflict, … it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

    
    

41. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

42. Here, Respondent has been charged in the Administrative Complaint with violations based on the following allegations:

    3. The Department discovered that StarChild committed two Class One violations of Child Care Licensing standards during an investigation on May 6, 2020.

    
    

    1. The Department received a complaint regarding the possible violations of childcare standards committed at StarChild on or about May 6, 2020. The complaint alleged that a child was mistreated and abused by a staff member while under care.

       
       

    2. David Meconitas was assigned by the Department to investigate the complaint. Mr. Meconitas' investigation discovered the following.

    
    

    1. A teacher at StarChild reported a concern about one of the children because the child was not using his arm and it appeared injured. The teacher's concern was conveyed to the child's father. The child is two years old. It appeared that the child's elbow was dislocated. The child's father, upon arrival at the school, was able to set the arm back into the socket without issue.

       
       

    2. Mr. Meconitas reviewed StarChild's surveillance footage of the classroom area to determine if a cause for the child's dislocated arm could be determined. After a review of the footage, it was discovered that a staff member of StarChild, Kylie Crisman, improperly and aggressively grabbed the child by both of his hands and pulled his arms strongly in an effort to get him on his feet, and then she dragged the child by his arms several feet to

       
       

       another area of the room. The video shows that this action was strong and sudden, and not in accordance with StarChild's discipline policy.

       
       

    3. A referral was made to the Child Protection Team, to evaluate the allegations. CPT Advanced Practice Registered Nurse (APRN) Margarita Diaz completed a medical examination of the child and concluded with positive findings of physical abuse. APRN Diaz confirmed that the sudden force and dragging of the child by his arms by Ms. Crisman caused the child's dislocated arm injury. APRN Diaz interviewed the mother, and determined that the child acquired a "nursemaids' elbow," as a result of Ms. Crisman's actions.

       
       

    4. StarChild terminated Ms. Crisman as a result of this incident.

    
    

43. Section 402.310 authorizes the Department to take disciplinary action against licensed child care facilities. This statute provides, in pertinent part, that the Department "may administer ... disciplinary sanctions for a violation of any provision of ss. 402.301-402.319, or the rules adopted thereunder."

    § 402.310(1)(a), Fla. Stat.

44. Section 402.310(1)(c) directs the Department to adopt rules to effectuate the following:

    1. Establish the grounds under which the department may deny, suspend, or revoke a license or registration or place a licensee or registrant on probation status for violations of ss. 402.301- 402.319.

       
       

    2. Establish a uniform system of procedures to impose disciplinary sanctions for violations of ss. 402.301-402.319. The uniform system of procedures must provide for the consistent application of disciplinary actions across districts and a progressively increasing level of penalties from predisciplinary actions, such as efforts to assist licensees or registrants to correct the

       
       

       statutory or regulatory violations, and to severe disciplinary sanctions for actions that jeopardize the health and safety of children, such as for the deliberate misuse of medications.

       
       

45. The "uniform system of procedures to impose disciplinary sanctions" is commonly referred to as the "classification system." This classification system is set forth in the Child Care Facility Standards Classification Summary (Classification Summary), which is incorporated by reference in rule 65C- 22.010(1)(e)1. The Department classifies violations as Class I, Class II, or Class III.

46. Rule 65C-22.010(1)(e)1. defines Class I violations as those that "are the most serious in nature." A Class I violation occurs when there is an incident of noncompliance with the Class I standards set forth in the Classification Summary.

47. Pursuant to the mandate of section 402.310(1)(c)1., the Department created the School-Age Child Care Facility Handbook (Handbook). The Handbook is incorporated by reference in rule 65C-22.008(5). School-age child care programs, like StarChild, must follow the standards found in the Handbook. Fla. Admin. Code R. 65C-22.008(5).

48. Respondent was charged with two Class I violations of standards set forth in the Handbook. The Administrative Complaint states, in pertinent part:

    1. On or about May 6, 2020, a form of discipline used by staff included the use of spanking or other form of physical punishment, in violation of CCF Handbook, Section 2.8 F.1. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 11-6, October 2017, incorporated by reference, 65C22.010(1)(e)1., F.A.C.

       
       

    2. On May 6, 2020, the owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect provided in Chapter 39, Florida

    
    

    Statutes or Chapter 827, Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 47-2, October 2017, incorporated by reference, 65C- 22.010(1)(e)1., F.A.C.

    
    

49. The Department, in its Proposed Recommended Order, clarifies the violations charged. First, the Department alleges StarChild's employee used physical punishment as a form of discipline and committed an act of child abuse, as defined in chapter 39, Florida Statutes, and that the aforementioned violations are Class I violations.

    Physical Punishment as a Form of Discipline

50. Section 2.8, F.1. of the Handbook provides that the following discipline techniques shall be prohibited in a child care facility:

    1. The use of corporal punishment/including, but not limited to:

       
       

       a) Hitting, spanking, shaking, slapping, twisting, pulling, squeezing, or biting;

       
       

       ***

       
       

       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.

       
       

51. In a video recording, StarChild's employee, Ms. Crisman, can clearly be seen committing several of these prohibited disciplinary techniques.

    Ms. Crisman roughly handled CJ by lifting or jerking him off the floor by both arms. While doing so, Ms. Crisman also pulled and forced CJ's movement. These actions were clearly the use of improper disciplinary techniques—Ms. Crisman forcefully yanked CJ off the ground and pulled him into a timeout corner.

    
    

52. The Department clearly and convincingly showed that StarChild, through the actions of its employee, committed an act of physical punishment as a form of discipline.

    Child Abuse

53. Section 8.2, A. of the Handbook provides that "[a]cts or omissions that meet the definition of child abuse or neglect provided in Chapter 39, F.S. or Chapter 827, F.S., constitute a violation of the standards in section 402.301-

    .319, F.S., and will support imposition of a sanction, as provided in Section 402.310, F.S."

54. Section 39.01(2) defines abuse 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 emotional health to be significantly impaired."

55. In this case, to prove StarChild committed child abuse, the Department must show through clear and convincing evidence that: (1) the StarChild employee committed a willful act; (2) that the willful act resulted in physical or mental injury/harm; and that (3) the physical or mental injury/harm caused CJ's physical, mental, or emotional health to be significantly impaired.

56. Section 39.01(35)(a)4. defines the word "harm" and provides guidance for determining whether harm has occurred in the context of inappropriate or excessively harsh disciplinary action. Although it specifically lists "dislocated elbow" as an example of when harm has occurred, it provides several factors to consider when making the determination about whether such harm amounts to abuse. It provides, in pertinent part:

    1. Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of

       
       

       the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries:

       
       

       1. Sprains, dislocations, or cartilage damage. (emphasis added).

    
    

57. It is clear in this case that Ms. Crisman willfully jerked CJ off the floor by both arms and pulled him into the corner of the room, and that her actions caused physical harm to CJ—that is, a dislocated elbow. However, the Department has not shown that CJ's physical, mental, or emotional health was significantly impaired because of the employee's actions. Although it is clear CJ was physically harmed, there is insufficient clear and convincing evidence that the physical harm caused CJ's physical, mental, or emotional health to be significantly impaired. CJ's father was able, through directives provided by a YouTube video, to fix CJ's arm. CJ attended StarChild the very next day and appeared happy and healthy.

58. The Department failed to prove that StarChild, through the actions of its employee, committed child abuse. 2

    Disciplinary Guidelines

59. Section 402.281(4)(a) sets out the standards for the Gold Seal Quality Care Program. It provides as follows:

    
    

    2 In its Proposed Recommended Order, the Department misplaces its reliance on a Recommended Order issued by Administrative Law Judge John Newton. See Dep't of Child. & Fam. v. Kiddie Island Acad., LLC, Case No. 20-2100 (Fla. DOAH Oct. 26, 2020), adopted in pertinent part (DCF Feb. 12, 2021). The Department argues that in Kiddie Island, the child care facility was found to have committed child abuse and the Department’s Administrative Complaint was upheld. Further, the Department argues that Judge Newton found, and the undersigned should follow suit, that the physical injuries the child suffered in that case amounted to child abuse. The Department mischaracterizes Judge Newton's findings. In fact, Judge Newton found that the teacher's treatment of the child in that case "did not amount to 'abuse' as the Legislature has defined it." Moreover, Judge Newton found that the Department did not prove the charges alleged and recommended dismissal of the Administrative Complaint. In its Final Order, the Department adopted these recommended findings and conclusions and dismissed the child abuse charge.

    
    

    1. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility, large family child care home, or family day care home must meet the following additional criteria:

       
       

       1. The child care provider must not have had any class I violations, as defined by rule, within the 2 years preceding its application for designation as a Gold Seal Quality Care provider. Commission of a class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class I violations for a period of 2 years. (emphasis added).

          
          

60. The statute explicitly provides that the commission of a Class I violation shall be grounds to terminate a child care facility's designation as a Gold Seal Quality Care provider.

61. As set forth above, StarChild is found to have committed an act of physical punishment as a form of discipline, in violation of section 2.8, F.1. of the Handbook, which constitutes a Class I violation.

62. Rule 65C-22.010(2)(d)1. provides for progressive discipline when Class I violations are found, as follows:

    1. Class I Violations.

       
       

       a. For the first and second violation of a Class I standard, the Department shall, upon applying the factors in section 402.310(1), F.S., impose a fine not less than $100.00 nor more than $500.00 per day for each violation, and may impose other disciplinary sanctions in addition to the fine.

       
       

63. Section 402.310(1) provides, in pertinent part:

    
    

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

    
    

    1. Impose an administrative fine not to exceed

       $100 per violation, per day. However, if the violation could or does cause death or serious harm, the department or local licensing agency may impose an administrative fine, not to exceed $500 per violation per day in addition to or in lieu of any other disciplinary action imposed under this section.

       
       

       ***

       
       

       1. In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered:

       
       

       1. The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 402.301-

          402.319 have been violated.

          
          

       2. Actions taken by the licensee or registrant to correct the violation or to remedy complaints.

          
          

       3. Any previous violations of the licensee or registrant.

       
       

64. Considering the factors set forth in section 402.310(1)(b), to include StarChild's robust response to address the incident, the lowest fine possible is appropriate. In addition, for the found violation, the Department is required by law to revoke StarChild’s Gold Seal Designation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families impose a fine of $100.00 against StarChild and revoke its designation as a Gold Seal Quality Care provider.

DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Brian Christopher Meola, Assistant General Counsel

Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

S

JODI-ANN V. LIVINGSTONE

Administrative Law Judge 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings this 19th day of May, 2021.

Lucia C. Pineiro, Esquire

Lucia C. Pineiro & Associates, P.A. Suite 309

717 Ponce de Leon Boulevard Coral Gables, Florida 33134

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 20-003754

Orders for Case No: 20-003754