STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

THE EARLY YEARS CDC,

Respondent.

/

Case Nos. 14-0605

14-0606

RECOMMENDED ORDER

On April 8, 2014, the final hearing was held in this case by video teleconference, with sites in Lakeland and Tallahassee, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cheryl Dianne Westmoreland, Esquire

Department of Children and Families 1055 U.S. Highway 17, North

Bartow, Florida 33830-7646

For Respondent: Karen I. Meeks, Esquire

Meeks, Lewis and Cabrera, P.A. Post Office Box 1598

Bartow, Florida 33831-1598 STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Children and Families (DCF) should fine the Respondent for alleged

violations in the operations of two child care centers in

Lakeland.

PRELIMINARY STATEMENT

DCF filed two administrative complaints against the Respondent alleging violations of the statutes and rules governing child care facilities. The first, filed in November 2013, sought a $50 fine for filing a license renewal application late. The second, filed in December 2013, sought five separate fines: one for $250 for a Class I violation of Florida Administrative Code Rule 65C-22.001(5)(a) and (6)(f)

(inadequate supervision) for leaving children unsupervised in a vehicle with the engine running on October 18, 2013; another for

$50 for a Class II violation of rule 65C-22.006(4)(d)2. (no documentation of having checked an employee's work history) on October 18, 2013, after a previous violation of the same rule on July 16, 2012; another for $50 for a Class II violation of rule 65C-22.006(4)(d)1. and section 435.04(1), Florida Statutes (2013), (no documentation of an employee's Level 2 screening) on July 19, 2013, after a previous violation of the same statute and rule on March 19, 2013; another for $50 for a Class II violation of rule 65C-22.001(5)(a) (inadequate supervision) on June 7, 2013, for allowing children to jump off tables and allowing a child to put a balloon in the mouth, which burst the balloon, while the lone employee was helping a child in the bathroom with

back turned to the other children, after a previous violation of the same rule on October 26, 2012; and another for $25 for a third Class III violation of rule 65C-22.002(1)(a) and (b) (safety deficiency) on August 14, 2013, for several electrical sockets without safety plugs, after previous violations of the same rule on June 7 and on July 19, 2013. (This Administrative Complaint was not pled in counts.) The Respondent requested a hearing on the charges, and the administrative complaints were referred to the Division of Administrative Hearings.

At the hearing, DCF called six witnesses, and Petitioner's Exhibits A through L were stipulated into evidence. The Respondent testified and called one witness, and Respondent's Exhibits A through C were stipulated into evidence.

No transcript was prepared. The parties filed proposed recommended orders that have been considered. The Respondent's proposed order only addressed the alleged Class I inadequate supervision violation for leaving children in a van with the

engine running.

FINDINGS OF FACT

1. The Respondent, Faith Without Works, Inc., d/b/a The Early Years CDC, is licensed by DCF to operate a child care facility at 5100 U.S. Highway 98, North, and at 2933 Duff Road, both in Lakeland. The Respondent's license certificate for the Highway 98 facility is C10PO0696; its license certificate for the

   
   

   Duff Road facility is C10PO0799. The charges in this case pertain to the Highway 98 license, C10PO0696.

   Late License Renewal

   
   

2. The Respondent's annual license for Highway 98 was due to expire on December 14, 2013. On November 4, 2013, the Respondent's principal, Elizabeth Jackson, telephoned DCF on behalf of the Respondent to report that no renewal packet had been received. Normally, DCF sends licensees a renewal packet in time to file a renewal application at least 45 days prior to the license expiration date (i.e., by the filing deadline). The evidence was not clear why the Respondent had not received the packet. The Respondent picked up a renewal packet from DCF and filed its renewal application on November 6, 2013.

3. There was no evidence of an affirmative misrepresentation from an authorized DCF employee that reasonably led the Respondent to delay filing its license renewal application. At best, there was evidence that the Respondent's license renewal application was late in 2011, but that no fine had been assessed. In that year, the Respondent asked DCF in early December as to the whereabouts of the renewal packet and was told that one had been sent on October 27, 2011. The Respondent then reported to DCF that a renewal packet was received on December 10, 2011, four days before expiration of its annual license, but the packet pertained to a different licensee.

   
   

   The Respondent picked up a renewal packet from DCF and filed for renewal. The Respondent was not fined for late renewal that year.

   Children Left in Van

   
   

4. On October 18, 2013, the Respondent's van driver took a four-year-old boy and his one-year-old sister home from the Highway 98 facility. On the way, he stopped at the Duff Road facility to drop off a box lunch. He parked the van in front of the building, very close to the door, went inside briefly, returned to the van to get what he was delivering, and brought the delivery into the building. He then returned to the van and continued on his way to deliver the children to their destinations. During the time he was at the Duff Road facility, the driver left the two children in the van with the engine running.

5. The driver recalled: that the door to the facility was unlocked; that he entered the building the first time just to announce his presence; that the entire delivery process took just

   30 seconds; and that the Duff Road facility staff was watching the van from the door the entire time. The Duff Road employee testified that the door was locked; that she interrupted her lunch break to unlock it and hold the door open; and that she was watching the van from the doorway the entire time. An employee of the Early Learning Coalition, who happened to drive up for a

   
   

   scheduled appointment just before the van arrived, testified that she saw no one at the door; that she could see the older child squirming in his seat; and that the children were left alone in the van long enough for her to make her observations, telephone her supervisor, report her observations, and ask what she should do, which probably took considerably longer than 30 seconds.

6. A child protective investigator testified that she learned from interviews with the driver, the older child, and the child's father that the child had a history of removing, or attempting to remove, his seat belt and moving about, or attempting to move about, while in vehicles. However, the evidence was not clear and convincing that the driver, who was a new employee, knew the child's propensities in that regard.

7. During the incident and the investigation on it, the Respondent accepted DCF's expression of concern that the driver's conduct could have resulted in serious harm to the children. The Respondent blamed the incident on the driver being a new employee, who was a school bus driver but was inexperienced transporting preschool children. The Respondent reprimanded the driver and required him to take training in transporting young children. The driver was appropriately remorseful and welcomed the training as being appropriate and helpful. All involved were grateful that no actual harm to the children occurred.

   
   

8. In its defense of the charge and during the hearing, the Respondent took the position that there was no serious harm, or threat of serious harm, based on the testimony of the driver and the Duff Road employee. The Respondent attempted to impeach the testimony of the protective investigator, that the driver did not mention the purported supervision by the Duff Road employee during her interview of him, by eliciting that the investigator did not directly ask whether staff was watching from the door. However, in the context of the interview, the driver would have been expected to offer that information had it been true.

9. Overall, the contemporaneous reaction and statements of all involved belie the Respondent's current position and the referenced testimony of its witnesses. It is found that the driver's conduct posed an imminent threat that serious harm could have occurred. The boy could have climbed out of his seat and gotten out of the van, which may not have been detectable by staff standing at the front door to one side of the van, or started playing with the van's gear shift and accelerator, which also may not have been observable from that vantage point, even assuming staff was monitoring the van the entire time.

   Employee Work History Not Checked

   
   

10. The driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked.

    
    

11. On July 16, 2012, during a routine DCF inspection, it was revealed that the Respondent had three employees whose work history had not been checked at the time. DCF provided "technical assistance" by telling the Respondent that all employees should have their two-year history checked before starting work, which should be documented.

12. At the time of this earlier violation, DCF gave the Respondent a formal warning stating its intent to take administrative action if further violations of the standard were found.

    Employee Not Screened

    
    

13. On July 19, 2013, the Respondent employed Desaundra Oldfield, who did not have Level 2 screening at the time. In its defense against this charge, the Respondent took the position that Ms. Oldfield was a participant in the Welfare-to-Work Program of Polk Works and was screened through that program. However, it is clear that Ms. Oldfield did not get required

    Level 2 screening until July 20, 2013.

    
    

14. On March 19, 2013, the Respondent was unable to produce documentation that Regina Curtis, who was employed for 30 days and also a parent of a child at the daycare center, had Level 2 screening. The Respondent's defenses at the time of the hearing were that Ms. Curtis was a participant in the Polk Welfare-to- Work Program, and also that she was no longer employed on

    
    

    March 19, 2013, so that on-site documentation was not required. However, the evidence was clear and convincing that Ms. Curtis did not have required Level 2 screening during the time she was working for the Respondent. Non-compliance was noted. Since Ms. Curtis no longer was employed, nothing further was done in the way of technical support.

15. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of the standard were found.

    Inadequate Supervision

    
    

16. On June 7, 2013, a DCF inspector responding to an unrelated (and unfounded) complaint observed a single employee in charge of a room of 19 four-year-olds having a party. While the employee's back was turned to help one child in the adjoining bathroom, the other children were jumping off tables and playing with balloons. One parent was in the room with the other children while this was going on, but the parent was not an employee, was not screened, and did not have her work history checked. A balloon burst while in a child's mouth, and the DCF inspector attended to the child to make sure the child did not swallow the burst balloon and choke.

17. On October 26, 2012, a DCF inspector responding to an unrelated (and unfounded) complaint came upon a child in a room

    
    

    by himself. Unnoticed, the child left the room where he was being supervised by an employee of the Respondent to look for candy and was in an adjoining room when seen by the DCF inspector. According to the inspector, when she returned the child, the employee indicated not knowing the child had left.

18. During the hearing, the Respondent asserted that the employee saw the child walk around the DCF inspector, undetected, and enter the adjoining room. The defense was not supported by any competent evidence and was not presented in the Respondent's proposed order.

19. At the time of this earlier violation, DCF gave the Respondent technical support and a formal warning stating its intent to take administrative action, if further violations of

    the standard were found.

    
    

    Safety Violation

    
    

20. Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This was a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. After the earlier violations, DCF gave technical

    
    

    support; after the second, DCF gave the Respondent a formal warning stating its intent to take administrative action, if further violations of the standard were found.

    Selective Enforcement Defense

    
    

21. The Respondent asserts as an additional defense that it was the victim of selective overzealous and picayune enforcement because of the personal prejudices and animosity of certain DCF personnel for various reasons, including that the Respondent licensed a second facility (at Duff Road) and intended to expand further. The evidence did not prove the alleged prejudice and animosity, or selective enforcement.

    CONCLUSIONS OF LAW

    
    

22. Since this is a license discipline case, DCF must prove its allegations by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.

    1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The Supreme Court has stated:

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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 Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

    
    

    Late Renewal

    
    

23. Rule 65C-22.001(1)(d) requires licensees to file a renewal application at least 45 days prior to expiration of the license. For the first occurrence, the fine for violating this rule is $50. Fla. Admin. Code R. 65C-22.001(1)(d) and

    65C-22.010(2)(d). It was clear from the evidence that the Respondent violated this rule for the first time in the fall of 2013.

24. The Respondent's defense to this charge, through the time of the hearing, was that DCF did not send the Respondent a renewal packet, as was done in the past. This essentially is an equitable estoppel defense. The law is clear that DCF cannot be estopped from enforcing its rules except upon an affirmative misrepresentation of fact, from an authorized representative of the agency, in a manner that makes it reasonable to rely on the misrepresentation of fact. See Associated Indus. Ins. Co. v.

    Dep't of Labor & Empl. Sec. (Dep't of Fin. Servs.), 923 So. 2d 1252, 1256 (Fla. 1st DCA 2006); Greenhut Constr. Co. v. Henry A.

    Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971). The Respondent

    
    

    did not prove its defense to the charge and did not maintain the defense in its proposed order.

    
    

    Child Left in Vehicle

    
    

25. Rule 65C-22.001(5)(a) and (6)(f) sets requirements for transporting children, including the maintenance of appropriate supervision at all times. For the first occurrence, the fine for violating this rule is from $100 to $500 per day, and other sanctions warranted by the facts. Fla. Admin. Code

    R. 65C-22.010(2)(e)1.a. DCF proved that on October 18, 2013, the Respondent's driver violated the rule by leaving two young children from the Respondent's Highway 98 facility in the Respondent's van with the engine running, while he dropped something off at the Respondent's Duff Road facility. Inadequate supervision is a Class I violation if it poses an imminent threat to children or could or did result in death or serious harm to the health, safety, or well-being of a child, which DCF proved in this case. DCF's assessment of a $250 fine was appropriate, considering the factors set out in section 402.310(1), Florida

    Statutes (2013).

    
    

    Employee Work History Not Checked

    
    

26. Rule 65C-22.006(4)(d)2. requires a licensee to document having checked an employee's work history. DCF proved by clear and convincing evidence that the driver of the van on October 18, 2013, had Level 2 screening, but there was no documentation that his work history was checked, which is a Class II violation.

DCF also proved by clear and convincing evidence that the

Respondent violated the same rule on July 16, 2012. The second occurrence warrants a $50 fine under rule 65C-22.010(2)(e)2.b.

Employee Not Screened

27. Rule 65C-22.006(4)(d)1. and section 435.04(1), Florida Statutes (2013), require licensees to ensure all employees undergo Level 2 screening. DCF proved by clear and convincing evidence that one person employed on July 19, 2013, did not have Level 2 screening, a Class II violation. DCF also proved by clear and convincing evidence that the Respondent violated the same rule on March 19, 2013, by employing Regina Curtis, who did not have Level 2 screening. The second occurrence warrants a

$50 fine under rule 65C-22.010(2)(e)2.b.

Inadequate Supervision

1. DCF proved another violation of rule 65C-22.001(5)(a), which requires direct supervision (meaning "actively watching and directing the children's activities within the same room or designated outdoor play area"), on June 7, 2013, this time when an employee was helping a child in the bathroom with his back turned to the classroom, where a party was going on unsupervised by any employee (there was only a parent of one of the children in the room at the time). The children were jumping off tables and playing with balloons. One balloon popped while in a child's mouth, and the DCF employee, who was doing an inspection at the time, had to make sure the child did not swallow the popped

   
   

   balloon and choke. This was a Class II violation. DCF also proved by clear and convincing evidence that the Respondent violated the same rule on October 26, 2012, when a child left his classroom unnoticed to look for candy and was seen in an adjoining room by a DCF employee during an inspection walk- through of the building. The second occurrence warrants a

   $50 fine under rule 65C-22.010(2)(e)2.b.

   
   

   Safety Violation

   
   

2. Rule 65C-22.002(1)(a) and (b) requires child care facilities to be free from health and safety hazards and not be used for any activity that endangers the health and safety of children. DCF proved a violation of this rule during a routine inspection on August 14, 2013, because several electrical sockets did not have required safety plugs. This is a Class III violation. DCA also proved by clear and convincing evidence two previous violations of this rule, one on June 7 and another on July 19, 2013. The third occurrence warrants a $25 fine under rule 65C-22.010(2)(e)3.c.

   Selective Enforcement Defense

   
   

3. The Respondent did not prove its defense that it was the victim of selective overzealous and picayune enforcement. As to the seemingly picayune nature of some of the alleged violations, this is inherent in the system of progressive discipline established by rule--e.g., Class III violations have

to be repeated three times in two years to warrant a fine of

just $25.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order finding the Respondent guilty of the alleged violations and fining the Respondent a total of $475.

DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON 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 30th day of April, 2014.

COPIES FURNISHED:

Esther Jacobo, Interim Secretary Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Marion Drew Parker, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Karen I. Meeks, Esquire Meeks, Lewis and Cabrera, P.A. Post Office Box 1598

Bartow, Florida 33831-1598

Cheryl Dianne Westmoreland, Esquire Department of Children and Families 1055 U.S. Highway 17, North

Bartow, Florida 33830-7646

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: 14-000606

Orders for Case No: 14-000606