STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

MARROQUIN'S LEARNING CENTER,

Respondent.

/

Case No. 17-3846

RECOMMENDED ORDER

Pursuant to notice, a disputed fact hearing in this cause was held by video teleconference between sites in Fort Myers and Tallahassee, Florida, on November 29, 2017, before Linzie F. Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Stefanie Beach Camfield, Esquire

Department of Children and Families Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: MaryAnn Marroquin, pro se

Marroquin's Learning Center 1220 Highway 29 South

LaBelle, Florida 33935

STATEMENT OF THE ISSUE

Whether Respondent committed a Class II violation by failing to properly supervise children in its care, and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On June 9, 2017, the Department Children and Families (Department/Petitioner) filed an administrative complaint against MaryAnn Marroquin, d/b/a Marroquin’s Learning Center (Respondent). Ms. Marroquin is owner of the learning center.

The administrative complaint alleges that on February 23, 2017, Respondent committed, within a two-year period, its third Class II violation of the supervision standards governing child care facilities. For the alleged third violation, Petitioner seeks imposition of a $60 fine against Respondent. Respondent

timely filed a request for administrative hearing, and on July 6, 2017, Petitioner referred the matter to the Division of Administrative Hearings (DOAH) for a disputed fact hearing.

During the hearing, Petitioner offered the testimony of its only witness, Chemenda Sawyer. MaryAnn Marroquin was the only witness to testify on behalf of Respondent. Petitioner’s Exhibits A through E, G-1, and G-2 were admitted into evidence. Respondent did not offer any exhibits, nor were any exhibits admitted into evidence on its behalf.

Respondent advised during the disputed fact hearing that the transcript of the hearing would be ordered and filed with DOAH. Respondent did not, however, order the transcript as indicated.

The parties were given until January 16, 2018, to file proposed recommended orders. The parties each timely submitted a Proposed

Recommended Order.

FINDINGS OF FACT

1. The Department has the authority to license and regulate day care facilities pursuant to sections 402.301 through 402.319, Florida Statutes.1/

2. Respondent is licensed by the Department to operate a child care facility named Marroquin's Learning Center, which is located at 1220 Highway 29 South, LaBelle, Florida 33935. MaryAnn Marroquin is the owner/director of the facility.

   Ms. Marroquin has been providing child care services for approximately 30 years.

3. Chemenda Sawyer is employed as a child care regulation worker for the Department, and has worked in this capacity for the previous four years. In 2015, Ms. Sawyer was assigned to monitor Respondent's facility for compliance with applicable child care regulations.

4. On January 7, 2016, and again on April 5, 2016, Respondent was cited for violating child care supervision standards, which require that children be supervised at all

   
   

   times. Each deviation from the standard constituted a Class II violation. In order to assist Respondent with compliance,

   Ms. Sawyer provided the facility with technical support regarding the violations and explained to Respondent strategies for ensuring future compliance. Following the April 5, 2016, violation, an administrative fine was imposed against Respondent.

5. On February 23, 2017, Ms. Sawyer, while performing a re-inspection of Respondent’s facility, again noticed that Respondent was not providing proper supervision for some of the children in its care. Specifically, soon after Ms. Sawyer arrived at Respondent’s facility on February 23, 2017, she was seated alone in the “yellow classroom” when the backdoor of the

   classroom opened and at least two boys, who were both enrolled at the child care facility, entered the room. The door closed behind the boys and Ms. Sawyer observed that the children were not being supervised.

6. According to Ms. Sawyer, the boys were “horsing around” as they entered the room, and they stopped in a corner of the room to play for one to two minutes. A staff member then called the children into the “multicolor classroom” where proper supervision of the boys was provided. Ms. Sawyer then exited the “yellow classroom” to report the violation to Ms. Marroquin, who was at her desk in another room eating lunch.

   
   

   CONCLUSIONS OF LAW

   
   

7. 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 (2017).

8. This is a proceeding in which the Department seeks to impose a disciplinary sanction, by way of an administrative fine, against Respondent’s license to operate as a day care facility. Because disciplinary proceedings are considered to be penal in nature, the Department is required to prove the allegations in the Administrative Complaint 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).

9. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:

   entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

   
   

   In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(citing, with approval, 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, 989

   (Fla. 1991).

   
   

10. Florida Administrative Code Rule 65C-22.001(5)(b) (2013) provides that “[c]hild care personnel at a facility must be assigned to provide direct supervision to a specific group of children, and be present with that group of children at all times.” This rule also provides that “[d]irect supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, during transportation, any activity outside of the facility, and responding to the needs of each child while in care.” The clear and convincing evidence establishes that on February 23, 2017, children were in the yellow classroom without proper supervision.

11. Rule 65C-22.010(1)(d)2. (2013) provides, in part, that Class II violations are violations that “could be anticipated to pose a threat to the health, safety or well-being of a child, although the threat is not imminent.” The clear and convincing evidence establishes that Respondent committed a Class II violation on February 23, 2017, when children were in the yellow classroom without proper supervision.

12. Rule 65C-22.010(2)(e)2. provides that “the third violation of the same Class II standard” shall result in “a fine

of $60 per day for each violation.” The Department seeks imposition of a $60 fine against Respondent. The clear and convincing evidence establishes that this is Respondent’s third such violation of the same Class II standard and the imposition of a $60 fine is in accordance with the governing rule.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Department of Children and Families, enter a final order finding that Marroquin’s Learning Center committed its third violation of the same Class II standard and imposing a fine of $60.

DONE AND ENTERED this 19th day of January, 2018, in Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 19th day of January, 2018.

ENDNOTE

1/ All subsequent references to Florida Statutes will be to 2016, unless otherwise indicated.

COPIES FURNISHED:

Stefanie Beach Camfield, Esquire Department of Children and Families Post Office Box 60085

Fort Myers, Florida 33906 (eServed)

MaryAnn Marroquin Marroquin's Learning Center 1220 Highway 29 South

LaBelle, Florida 33935

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

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

John Jackson, Acting 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: 17-003846

Orders for Case No: 17-003846