STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

CHILDREN’S HOUR DAY SCHOOL,

Respondent.

/

Case No. 14-4539

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on November 20, 2014, by video teleconference between sites in Miami and Tallahassee, Florida, before Administrative Law Judge (ALJ) Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Karen A. Milia, Esquire

Department of Children and Families

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

For Respondent: Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street, Suite 210

Miami, Florida 33156

STATEMENT OF THE ISSUES

Whether Respondent, a day-care center, committed the violations alleged in the Administrative Complaint, and if so, the penalties Petitioner should impose against Respondent.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 15, 2014, the Department of Children and Families (Petitioner) alleged certain facts. Based on those facts, Petitioner charged Children’s Hour Day School (Respondent) with two class I violations. First, the Administrative Complaint charged that Respondent violated section 402.305(12)(a)1. through 3., Florida Statutes, and Florida Administrative Code Rules 65C-22.001(8)(b)

and 65C-22.001(11)(a), when the owner of the facility withheld food from a child as a form of punishment. Second, the Administrative Complaint charged that Respondent violated sections 402.319(1)(a) and 402.3055(1)(a)(b) (sic) by submitting to Petitioner an application with a forged notarized signature. For each violation, Petitioner seeks to impose an administrative fine in the amount of $200.00 and to place Respondent’s license on probation for a period not to exceed six months.

Respondent timely filed with Petitioner a Petition for Formal Administrative Hearing on September 4, 2014. On September 29, 2014, Petitioner forwarded the matter to DOAH, and

this proceeding followed.

At the formal hearing, Petitioner presented the testimony of Michaelyn Radcliff (a family services counselor employed by Petitioner), Tajah Brown Donaldson (a former employee of Respondent), Ivanne Albarran (a former employee of Respondent who is also a notary public), and E.B. (the mother of S.B. and L.B.). Petitioner offered pre-marked Exhibits 1, 2 (page 2 only), 3, and

5 through 8, each of which was admitted into evidence.

Respondent presented the testimony of Kevin Lennon (Respondent’s owner) and Mr. Albarran. Respondent offered one exhibit, which was admitted into evidence and filed post- hearing.

No transcript of the hearing was filed with DOAH. However, a transcribed “Excerpt” of the hearing was filed December 11, 2014. On Respondent’s motion, the deadline for the filing of proposed recommended orders was extended to December 12, 2014.

Thereafter, the parties timely filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (2014).

FINDINGS OF FACT

1. Petitioner is the regulatory authority responsible for licensure and enforcement of day-care centers in Florida.

2. Respondent is a day-care center in Miami, Florida, and

   
   

   currently holds child care license C11MD0340. Respondent has operated as a day-care center since April 19, 1990. At the time of the formal hearing, Kevin Lennon was the owner and operator of Respondent.

3. S.B. and L.B. are young sisters who stayed at Respondent’s day-care center in July 2014. On July 9, 2014, one of Respondent’s employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. Mr. Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older

   and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister’s share of the Cheez-Its.

   Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Petitioner offered no competent, credible evidence to refute Mr. Lennon’s testimony.

4. On March 25, 2014, Petitioner received from Respondent an “Application for a License to Operate a Child Care Facility” (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon’s signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014.

   The first attestation section contains Ivanne Albarran’s notary

   
   

   seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public.

   Petitioner offered insufficient evidence to refute that testimony.

5. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon’s signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran’s notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as “Kevin Lennon.” Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Petitioner offered no competent, credible evidence to refute that testimony.

   CONCLUSIONS OF LAW

   
   

6. DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014).

7. Petitioner has the burden of proving by clear and convincing evidence that Respondent committed the violations as alleged and the appropriateness of any fine and penalty resulting

   from the alleged violations. See Ferris v. Turlington, 510 So.

   
   

   2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. &

   
   

   Consumer Servs., 550 So. 2d 112 (Fla. 1st DCA 1989); and Inquiry Concerning a Judge, 645 So. 2d 398 (Fla. 1994).

8. In Slomowitz v. Walker., 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court held that:

   Clear and convincing evidence requires that the evidence must be found to be credible: the facts to which the witnesses testify 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.

   
   

9. The Administrative Complaint consists of two alleged violations. Count I alleges that Respondent inappropriately disciplined a child by withholding food as punishment. Petitioner failed to prove that alleged violation.

10. Count II of the Administrative Complaint alleges that Respondent submitted an application for licensure with a forged notarized signature. Petitioner failed to prove that alleged

violation.

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 dismissing the Administrative Complaint.

DONE AND ENTERED this 9th day of January, 2015, in Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 9th day of January, 2015.

COPIES FURNISHED:

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street, Suite 210

Miami, Florida 33156 (eServed)

Karen A. Milia, Esquire

Department of Children and Families

401 Northwest Second Avenue, Suite N-1014 Miami, Florida 33128

(eServed)

Paul Sexton, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 (eServed)

Rebecca Kapusta, Interim General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Mike Carroll, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 14-004539

Orders for Case No: 14-004539