vs.
Respondent.
Case No. 17-4176
J. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2017),1/ on September 14 and October 20, 2017, by video teleconference sites in Tallahassee and Orlando, Florida.
The issue in this matter is whether the Department of Children and Families should revoke Respondent’s license to operate a child care facility.
On June 27, 2017, Petitioner, Department of Children and Families (the “Department”), issued an Administrative Complaint notifying Respondent, Little Learners Academy II (“Little Learners”), that the Department intended to revoke its child care license, as well as impose an administrative fine in the amount of $500. The Department seeks to sanction Little Learners for violating child care licensing standards found in section 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. The Department initiated this action based on its belief that Little Learners falsified information on its application for a license to operate a child care facility.
Respondent timely requested an administrative hearing challenging the Department’s action. On July 21, 2017, the Department referred the matter to the Division of Administrative Hearings (“DOAH”) and requested assignment to an Administrative Law Judge to conduct a chapter 120 evidentiary hearing.
The final hearing commenced on September 14, 2017. Despite receiving proper notice of the hearing date, location, and time, Respondent did not appear on September 14, 2017. At the
Department’s request, the final hearing was continued to accommodate a Department witness who was unavailable on September 14, 2017, due to the impact of Hurricane Irma. The
final hearing reconvened, and was concluded, on October 20, 2017. Respondent’s owner, Diandra Wright, appeared at the hearing on October 20, 2017.
The Department presented the testimony of Christina Bryant, Whitney Ricks, and Shavol Spaulding. Department Exhibits 1 through 3 were admitted into evidence. Ms. Wright testified on Respondent’s behalf. Respondent did not present any exhibits.
A court reporter recorded the final hearing.2/ At the close of the hearing, the parties were advised of a ten-day timeframe following the final hearing to file post-hearing submittals. The Department requested a ten-day extension of the filing deadline, which was granted.3/ The Department filed a Proposed Recommended Order which was duly considered in preparing this Recommended Order.
The Department is the state agency charged with regulating providers that are licensed or registered to provide child care in the state of Florida. See § 402.305(1), Fla. Stat.
Ms. Wright is the owner and operator of Little Learners.
On January 9, 2017, Ms. Wright completed, signed, and submitted
an application to the Department for Little Learners to operate as a child care facility in the state of Florida.
Section E of the application is entitled “On-Site Director Information.” Section E instructs the applicant to identify the director of the child care facility. Section E further states that, “An On-site Director holds a Director Credential and is responsible for the day-to-day operation of the facility and is required to be on-site the majority of operating hours.” On her application, Ms. Wright wrote in the name of Shavol Spaulding as the director for Little Learners.
Just above the applicant signature line, the application states:
Falsification of application information is grounds for denial or revocation of the license to operate a child care facility.
Your signature on this application indicates your understanding and compliance with this law.
Based on the information contained in the application, the Department determined that Little Learners met all the requirements necessary to receive a license to operate a child care facility. Therefore, in January 2017, the Department issued a license to Little Learners.
However, in or about May 2017, the Department received information that Ms. Spaulding never worked for Little Learners as its on-site director. Consequently, in June 2017, the
Department initiated this action to revoke the license it issued to Little Learners in January 2017. The Department alleges that Ms. Wright misrepresented on the application that Little Learners had hired Ms. Spaulding to serve as its director.
At the final hearing, the Department presented Christina Bryant, its Childcare Regulations Supervisor. In her role,
Ms. Bryant reviews child care license applications.
Ms. Bryant testified that in order for a child care facility to receive a license from the Department, the facility must employ a credentialed, on-site director.4 A director with the appropriate credentials assures the Department that someone who is trained in the required child care standards is overseeing the facility. Requiring the director to remain “on-site the majority of operating hours” ensures that the facility will provide the safest environment for the children who attend. The Department will not issue a license to a facility that does not identify a director or indicates that the director position is pending.
Ms. Bryant relayed that around May 2017, the Department received a report from the Early Learning Coalition that
Ms. Spaulding was not the director of Little Learners. Subsequently, on May 15, 2017, the Department obtained a letter signed by Ms. Spaulding confirming this fact. As a result,
Ms. Bryant initiated an investigation to determine whether the
Department appropriately issued a child care license to Little Learners.
In the course of her investigation, Ms. Bryant contacted Ms. Wright. Ms. Wright expressed to Ms. Bryant that Ms. Spaulding was the director of her facility. However,
Ms. Wright was not able to provide any documentation to Ms. Bryant verifying Ms. Spaulding’s employment as Little
Learners’ director, such as personnel records, time sheets, or sign-in sheets. Consequently, Ms. Bryant concluded that
Ms. Spaulding was not, in fact, the director of Little Learners.
Ms. Bryant later learned that Ms. Spaulding was actually employed as the director of another child care facility. Ms. Bryant asserted that a credentialed child care director is required to be present at a single facility during a majority of the operating hours. Consequently, a director is not permitted to serve in such a capacity at more than one facility.
Ms. Bryant conveyed that, rather than immediately initiating an action to revoke Petitioner’s license, the Department elected to allow Ms. Wright additional time to hire a director. Therefore, on May 19, 2017, the Department issued Little Learners a six-month, provisional license.5/ During this time period, Little Learners was allowed to operate without a designated director.
Whitney Ricks, a Family Services Counselor, also testified for the Department. As part of her responsibilities, Ms. Ricks inspected the Little Learners facility in January and April 2017. Ms. Ricks reported that she met with Ms. Wright during both inspections. However, she never observed nor saw Ms. Spaulding at the facility. Ms. Ricks commented that
Ms. Wright specifically represented to her that Ms. Spaulding did work at Little Learners, but was not present at the time of either inspection.
Ms. Spaulding testified at the final hearing.
Ms. Spaulding declared that she has never served as the director for Little Learners. Ms. Spaulding explained that, in
October 2016, she applied for a director position with
Ms. Wright. However, she never heard back regarding the job after her interview. Consequently, she never worked for Little Learners in any capacity.
Ms. Spaulding confirmed that she wrote a statement in May 2017 informing the Department that she was not the director of Little Learners. Ms. Spaulding also stated that she currently works as the director of another child care facility, and did so on January 9, 2017, as well.
Ms. Spaulding represented that she holds the required credentials to work as a child care director. She repeated
Ms. Bryant’s testimony that a child care facility is required to
employ a credentialed, on-site director in order to obtain a license to operate in the state of Florida. Ms. Spaulding also acknowledged that a child care director may only be employed by one facility at a time.
Ms. Wright testified on behalf of Little Learners.
Ms. Wright purchased the Little Learners center in October 2015. She was new to the child care business and has had to learn how to operate her facility as she gained experience.
Ms. Wright insisted that, contrary to Ms. Spaulding’s testimony, she did hire her as Little Learners’ director.
Ms. Wright further declared that she believed that Ms. Spaulding was serving as Little Learners’ director on January 9, 2017, when she applied for a child care license. Ms. Wright claimed that she did not find out that Ms. Spaulding was not working for Little Learners until three days after she submitted her application. It was then that the Early Learning Coalition notified her that Ms. Spaulding was employed as the director of another facility.
Ms. Wright stated that she asked Ms. Spaulding to serve as Little Learners’ director within weeks after she opened Little Learners in October 2015.6/ Ms. Wright expressed that
Ms. Spaulding started working for Little Learners shortly thereafter, and she saw Ms. Spaulding at her facility every day.
Ms. Wright also asserted that Ms. Spaulding never told her that she was working for another child care facility.
Ms. Wright further testified that she paid
Ms. Spaulding $300 in cash every week since October 2015 for her director services. However, Ms. Wright did not retain (or produce for the Department) any employee documents, bank statements, pay stubs, tax forms, or other written records supporting her claim that Ms. Spaulding worked for Little Learners at any time between 2015-2017.
Ms. Wright relayed that, after the Department contacted her, she confronted Ms. Spaulding about her work status.
Ms. Wright attested that Ms. Spaulding apologized to her and told her that she had been caught working as the director of another child care business. Ms. Wright claimed that Ms. Spaulding offered to repay the money Ms. Wright had given her. Ms. Wright turned down Ms. Spaulding’s proposal because she did not believe that Ms. Spaulding could pay her back.
Ms. Wright revealed that currently Little Learners has no director, no children to care for, and is essentially no longer operating. Ms. Wright explained that she attempted to hire another person as Little Learners’ director during the time she held the provisional license, but the person she sought out did not accept the job.
In its Administrative Complaint, the Department alleges that Ms. Wright misrepresented the qualifications or credentials of Little Learner’s child care personnel (i.e., that Little Learners employed a director named Shavol Spaulding). The Department categorized Ms. Wright’s action as a Class I violation of section 402.319(1)(f)3. The Department seeks to revoke the license it issued to Little Learners in January 2017, as well as fine Little Learners in the amount of $500.
Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Ms. Wright misrepresented the fact that Little Learners had a credentialed, on-site director on the date she submitted her application to the Department. Accordingly, the Department met its burden of proving that Little Learners’ application for a child care license should be revoked under section 402.319.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1).
To operate in Florida, a child care facility must be licensed with the Department. See §§ 402.308(1) and 402.312(1),
Fla. Stat. The Department is authorized to impose disciplinary
sanctions for violations of child care licensing standards. See
§§ 402.3055(2) and 402.310, Fla. Stat.
In this matter, the Department seeks to sanction Little Learners by revoking the child care license it issued to Little Learners in January 2017, as well as impose an administrative fine. The Department alleges that Little Learners (Ms. Wright) made a misrepresentation on its application as to the qualifications or credentials of its child care personnel in violation of section 402.319(1)(f)3.
Section 402.319(1)(f) states that it is punishable for any person knowingly to:
Make any other misrepresentation, by act or omission, regarding the licensure or operation of a child care facility . . . to a representative of the licensing
authority . . . including, but not limited to, any misrepresentation as to:
* * *
3. The qualifications or credentials of child care personnel. . . .
Section 402.310 states, in pertinent part:
(1)(a) The department . . . 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:
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 . . . 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.
* * *
3. Deny, suspend, or revoke a license or registration.
The Department’s action to discipline Respondent is penal in nature. Accordingly, the Department bears the burden of proving the grounds for disciplinary action by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. &
Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla.
1996); see also Fla. Dep’t of Child. & Fams. v. Davis Fam. Day Care Home, 160 So. 3d 854, 856 (Fla. 2015).
Clear and convincing evidence is a heightened standard that “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” Clear and convincing evidence is defined as an intermediate burden of proof that:
[R]equires 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 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.
S. Fla. Water Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872-73
(Fla. 2014)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.
4th DCA 1983)). “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. 1991).
Turning to the matter at hand, the competent substantial evidence in the record sufficiently supports the Department’s action to sanction Little Learners’ child care license. The Department proved, by clear and convincing evidence, that Little Learners (through Ms. Wright) misrepresented on its application that it employed a credentialed, on-site director when it applied for a license on January 9, 2017.
The testimony from the three Department witnesses was explicit, precise, and lacked confusion. The most significant testimony came from Ms. Spaulding who unequivocally attested that she was never employed as the director of Little Learners. Her testimony was clear and unambiguous. While testifying,
Ms. Spaulding was not challenged or questioned in any manner that caused the undersigned to doubt her credibility or veracity.
The testimony from Ms. Bryant and Ms. Ricks corroborated Ms. Spaulding’s statement, thus strengthening her credibility. During her investigation, Ms. Bryant specifically questioned
Ms. Wright about Ms. Spaulding’s employment status with Little Learners. Although Ms. Wright firmly maintained that she hired Ms. Spaulding to be her director, Ms. Wright produced no
documentation or other proof for the Department supporting her claim. For her part, Ms. Ricks visited the Little Learners facility twice in early 2017. She did not observe Ms. Spaulding at the facility on either occasion.
Conversely, while Ms. Wright steadfastly professed that she believed that Ms. Spaulding worked for her on January 9, 2017, her uncorroborated testimony alone was not sufficiently persuasive to create some “hesitancy” in finding that she misrepresented on her application that Little Learners employed a credentialed,
on-site director. At the final hearing, Ms. Wright did not provide any proof affirming her assertion that Ms. Spaulding agreed to serve as her on-site director. Ms. Wright did not produce any documentary evidence or witness testimony substantiating her assertion that Ms. Spaulding worked at Little Learners at any time in any capacity.
Consequently, the testimony and evidence presented at the final hearing establishes, by clear and convincing evidence, that Ms. Wright knew on January 9, 2017, that Ms. Spaulding was not working for Little Learners as its credentialed, on-site director. Therefore, the Department met its burden of proving that Little Learners violated section 402.319(1)(f)3. by misrepresenting the qualifications of its child care personnel.
Under section 402.310(1)(a), the Department is authorized to impose disciplinary sanctions for a violation of
section 402.319. Permitted penalties include revocation of a license, as well as the imposition of an administrative fine. In determining the appropriate discipline, section 402.310(1)(b) states that the following factors shall be considered:
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.
Actions taken by the licensee or registrant to correct the violation or to remedy complaints.
Any previous violations of the licensee or registrant.
Based on the evidence in the record, the undersigned concludes that revocation of Little Learners child care license is the appropriate sanction. Little Learners does not have, nor has it ever employed, a credentialed, on-site director. Consequently, Little Learners should not be licensed to operate a child care facility in Florida.
Conversely, the undersigned concludes that an administrative penalty against Little Learners is not warranted under the circumstances. Ms. Wright’s misrepresentation did not result in the death or serious harm to the health or safety of any child. In addition, although unsuccessful, Ms. Wright did make an effort to rectify her facility’s deficiency by attempting to hire
another credentialed director during the time she held her six- month, provisional license. Finally, nothing in the record indicates that Little Learners or Ms. Wright has previously violated child care licensing standards.
In sum, the evidence in the record establishes, by clear and convincing evidence, that Little Learners misrepresented on its application the qualifications or credentials of its child care personnel (director) in violation of section 402.319(1)(f)3. Accordingly, the Department met its burden of proof in order to sanction Respondent under section 402.310. The appropriate sanction to impose is to revoke the child care license the Department issued to Little Learners in January 2017.
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 revoking Respondent’s license to operate a child care facility.
DONE AND ENTERED this 7th day of December, 2017, in Tallahassee, Leon County, Florida.
J. BRUCE CULPEPPER Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2017.
1/ Unless otherwise stated, all statutory references are to the 2017 codification of the Florida Statutes.
2/ Several weeks after the final hearing, the Department notified DOAH that it decided to order a transcript. A two-volume Transcript of the hearing was filed with DOAH on November 17, 2017. However, because neither party requested a transcript at the final hearing, the time period designated for post-hearing submittals was set based on the final hearing date.
3/ By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin.
Code R. 28-106.216(2).
PERSONNEL.—Minimum standards for child care personnel shall include minimum requirements as to:
(f) By January 1, 2000, a credential for child care facility directors. By January 1, 2004, the credential shall be a required minimum standard for licensing.
5/ See Florida Administrative Code Rule 65C-22.001(1)(d), which states that, “The Department may issue a provisional license allowing a facility to operate for a designated period of time while working to correct one or more licensing standard(s) not met, provided the owner is making adequate provisions to ensure the health and safety of the children in care. A provisional license is a not a disciplinary sanction.” See also § 402.309, Fla. Stat.
6/ Documentary evidence in the record establishes that Ms. Spaulding applied to Little Learners for the director
position in October 2016. In her testimony, Ms. Wright may have confused the actual year Ms. Spaulding applied for the job (2015 versus 2016).
Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204
Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129
Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204
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.
