STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

LITTLE ACHIEVERS LEARNING CENTER,

Respondent.

/

Case No. 18-0388

RECOMMENDED ORDER

The final hearing in this matter was conducted before

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 April 4, 2018, by video sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Brian Christopher Meola, Esquire

Department of Children and Families

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

For Respondent: Marcia Stewart, pro se

Little Achievers Learning Center 1440 North Pine Hills Road Orlando, Florida 32808

STATEMENT OF THE ISSUE

The issue in this matter is whether the Department of Children and Families should impose an administrative fine on Respondent, Little Achievers Learning Center.

PRELIMINARY STATEMENT

On November 20, 2017, Petitioner, Department of Children and Families (the “Department”), issued an Administrative Complaint against Respondent, Little Achievers Learning Center (“Little Achievers”). Through the Administrative Complaint, the Department seeks to sanction Little Achievers for violating child care licensing standards found in sections 402.301 through 402.319, Florida Statutes, and Florida Administrative Code Chapter 65C-22. For such violations, the Department intends to impose on Little Achievers an administrative fine in the amount of $500.

Little Achievers timely requested an administrative hearing challenging the Department’s action. On January 22, 2018, the Department referred the matter to the Division of Administrative Hearings (“DOAH”) and requested assignment to an Administrative Law Judge (“ALJ”) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on April 4, 2018. The Department presented the testimony of Alen Young and Ida Lewis. Department Exhibits A through F were admitted into evidence. Little Achievers presented the testimony of Marcia Stewart.

A court reporter recorded the final hearing. Neither party requested a transcript. At the close of the hearing, the parties were advised of a ten-day timeframe to file post-hearing submittals. At the final hearing, the Department requested a ten-day extension of the filing deadline, which was granted.2/

The Department filed a Proposed Recommended Order, which was duly considered in preparing this Recommended Order.

FINDINGS OF FACT

1. 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.

2. Little Achievers is licensed under chapter 402 to operate a child care facility in Orlando, Florida.

3. The Department seeks to sanction Little Achievers following an injury to a two-year-old boy at its daycare facility. In short, on July 28, 2017, the child, J.P.,3/ fell out of a swing on Little Achiever’s playground and broke his arm.

4. The Department’s Administrative Complaint alleges two violations of Florida child care licensing standards. First, the Department charges that:

   1. Little Achievers “inadequately supervised” the child

      
      

      “in that a two-year-old fell off a swing and broke his arm, which resulted in serious harm to the health, safety or well-being of that child”; and

      
      

   2. Little Achievers did not provide “a resilient surface . . . beneath the fall zone” of the swing set in its backyard playground, which resulted in serious injury to the child.

5. The Department categorized Little Achievers’ first offense as a Class I violation under rule 65C-22.001(5)(a). For this violation, the Department seeks to fine Little Achievers in the amount of $250.

6. The Department also categorized Little Achievers’ second offense as a Class I violation under rule 65C-22.002(11)(b).4/ The Department seeks to impose an additional fine of $250 for this violation.

7. At the final hearing, Marcia Stewart testified on Little Achievers’ behalf. Ms. Stewart owns and operates Little Achievers. Little Achievers cares for approximately 40 children.

8. Ms. Stewart was not present at the daycare when J.P. fell, nor did she observe the incident. However, she was immediately contacted after the accident and returned to the facility.

9. Ms. Stewart relayed that Denise Roundtree was Little Achievers’ employee who was responsible for supervising J.P. on the playground. Ms. Roundtree was watching about ten children at the time. Reportedly, she had positioned herself in the center of the playground so that she could monitor all the children.

   
   

   Ms. Roundtree was about an arm’s length in front of J.P. as he used the swing.

10. At the appointed time, Ms. Roundtree called for all the children to go back inside the daycare. Just afterwards, J.P. fell backwards out of his swing seat and onto the ground.

    Ms. Roundtree hurried to J.P.’s side and immediately noticed that his arm did not appear normal.

11. When Ms. Stewart arrived at the facility, she found

    
    

    J.P. crying and not moving his right arm. Ms. Stewart promptly called J.P.’s mother to tell her of her son’s injury. J.P.’s mother relayed that she was stuck in traffic and would be delayed in driving to the daycare. Ms. Stewart then decided to call 911. Emergency personnel responded to the scene. After concluding that J.P.’s elbow looked “deformed,” emergency personnel transported J.P. to Arnold Palmer Hospital.

12. J.P.’s mother reached the daycare at the same time as the paramedics and accompanied her son to the hospital.

    Ms. Stewart also drove to the hospital.

    
    

13. At Arnold Palmer Hospital, J.P. was diagnosed with a supracondylar fracture of the distal right humerus (his upper arm bone above his right elbow). The next morning, J.P. underwent surgery without complications.

14. The incident was reported to the Department. The Department then initiated a Child Abuse Investigation and a Child

    
    

    Care Facility Licensing Investigation. The investigations were assigned to Alen Young, a Child Protective Investigator, and Ida Lewis, an inspector for the Child Care Regulation Unit.

15. At the final hearing, Mr. Young relayed that as part of his investigation, he and Ms. Lewis visited Little Achievers’ daycare center the day after the accident (July 29, 2017). Upon arriving at the facility, they met with both Ms. Roundtree and Ms. Stewart. Mr. Young testified that Ms. Roundtree explained that, at the time of the accident, she was watching about ten children on the playground, including J.P. Ms. Roundtree stated that J.P. injured himself after she announced that it was time for the children to go back inside. Ms. Roundtree also revealed that J.P. often threw himself backwards onto the ground when he did not get his way.

16. Ms. Roundtree completed (and signed) an accident report on the date of the injury. Ms. Roundtree wrote that while J.P. was on the swing, she told him that “it was time to come in and [J.P.] had a fall and fell out of the swing. I walk [sic] to him and he was crying and I notice his right arm was injured.”

17. During her testimony, Ms. Stewart agreed with

    
    

    Ms. Roundtree’s statement that her staff had observed J.P. throw himself backwards onto the floor when he did not get his way.

    Ms. Stewart surmised that when Ms. Roundtree told the children

    
    

    that it was time to come inside, J.P. got angry and threw himself backwards off the swing.

18. Mr. Young and Ms. Lewis also inspected the swing set in Little Achievers’ backyard. The swing set consisted of a metal frame with three hard, plastic seats. The seats were flat with no chair backs or buckets.

19. Mr. Young also testified that the area underneath the swing set lacked a “resilient surface.” The ground was mostly hard, compact dirt. Mr. Young noted that, at one point, mulch had been spread below the seats. However, on the date of his visit, the mulch had been brushed aside, most likely from children using the swings. (The Department also introduced a photograph of the swing set which showed the seats, as well as the ground beneath the swings.)

20. Following his investigation, Mr. Young concluded that Little Achievers committed “inadequate supervision” by allowing

    J.P. to use the swing set without sufficient oversight.

    
    

    Mr. Young commented that Little Achievers was aware that J.P. had a tendency to throw himself backwards onto the ground when he became upset. Therefore, to properly monitor J.P. while he was using the swing, Little Achievers’ staff (Ms. Roundtree) should have stood next to, or behind him. In this case, Ms. Roundtree was not positioned close enough to J.P. to safeguard him from possible injury.

    
    

21. Mr. Young further opined that the swing seat was not appropriate for a child of J.P.’s age and size. To provide the safest environment for a two-year-old boy who wanted to use the swing set, Mr. Young declared that Little Achievers should have fashioned the swing set with a “basket” seat, or a seat with a belt.

22. Finally, Mr. Young concluded that Little Achievers failed to maintain an adequate protective surface under the swing to prevent injury. Mr. Young commented that he would have expected to see mulch beneath the seats to make the equipment as safe as possible. He believed that the lack of mulch contributed to J.P.’s injury.

23. At the final hearing, Ms. Lewis conveyed that she inspected Little Achievers’ facility quarterly. She was not aware of any other administrative violations or complaints against Little Achievers.

24. In response to the Department’s testimony, Ms. Stewart maintained that her staff, including Ms. Roundtree, took all the proper steps to supervise, then care for, J.P. Ms. Stewart explained that her staff observed that J.P. was able to climb onto the swing seat without any problems. Therefore, they assumed that J.P. could use the swing by himself.

25. Ms. Stewart readily accepted responsibility for J.P.’s injury, but expressed that it was an accident. She would never

    
    

    have intentionally placed a child at risk of harm. Ms. Stewart admitted that her staff was aware that J.P. had a habit of “falling out” when he was angry. However, they never knew that he would have thrown himself backwards off a swing seat.

26. Ms. Stewart further stated that she removed the swing set from her backyard the day after the incident. She never wants another child injured on her playground.

27. Ms. Stewart also represented that she had spread mulch all across the playground, including under the swing set after it was installed. She surmised that the mulch had been kicked away by the children who used the swing. Ms. Stewart pointed out, however, that there was no guarantee that a fall onto the mulch surface would have prevented J.P.’s injury.

28. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Little Achievers failed to adequately supervise J.P. while he was using the swing set. Further, Little Achievers failed to provide and maintain the appropriate safety standards for its outdoor equipment. Accordingly, the Department met its burden of proving that Little Achievers committed two violations of child care licensing standards which supports an administrative fine under chapter 402.

    
    

    CONCLUSIONS OF LAW

    
    

29. 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).

30. 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

    § 402.310, Fla. Stat.

    
    

31. In this matter, the Department seeks to sanction Little Achievers alleging that Little Achievers committed “inadequate supervision” in violation of rule 65C-22.001(5)(a), and well as failed to provide and maintain outdoor equipment to ensure safe usage by children as required by rule 65C-22.002(11)(b).

32. Section 402.305 states, in pertinent part, as follows:

    
    

    1. LICENSING STANDARDS.—The department shall establish licensing standards that each licensed child care facility must meet. . . .

       
       

       1. The standards shall be designed to address the following areas:

          
          

          1. The health, sanitation, safety, and adequate physical surroundings for all children in child care.

          
          

          * * *

          
          

          (c) The minimum standards for child care facilities shall be adopted in the rules of the department and shall address the areas delineated in this section. The department,

          
          

          in adopting rules to establish minimum standards for child care facilities, shall recognize that different age groups of children may require different standards.

          
          

          * * *

          
          

          (5) PHYSICAL FACILITIES.—Minimum standards shall include requirements for building conditions, indoor play space, outdoor play space, napping space, bathroom facilities, food preparation facilities, outdoor equipment, and indoor equipment. Because of the nature and duration of drop-in child care, outdoor play space and outdoor equipment shall not be required for licensure; however, if such play space and equipment are provided, then the minimum standards shall apply to drop-in child care.

          
          

33. Rule 65C-22.0015/ provides, in pertinent part:

    
    

    (5) Supervision.

    
    

    1. Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of each child. Child 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. When caring for school-age children, child care personnel shall remain responsible for the supervision of the children in care, shall be capable of responding to emergencies, and are accountable for children at all times, including when children are separated from their groups.

       
       

34. Rule 65C-22.0026/ provides, in pertinent part:

    
    

    (11) Equipment and Furnishings.

    
    

    * * *

    
    

    1. Outdoor Equipment.

    
    

    1. A child care facility shall provide and maintain equipment, and play activities suitable to each child’s age and development.

    
    

    * * *

    
    

    3. Permanent or stationary playground equipment must have a ground cover or other protective surface under the equipment that provides resilience, and is maintained to reduce the incidence of injuries to children in the event of falls.

    
    

35. The Department’s action to discipline Little Achievers 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).

    
    

36. 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).

    
    

37. Turning to the matter at hand, the competent substantial evidence in the record supports the Department’s action to sanction Little Achievers’ child care license. The Department proved, by clear and convincing evidence, that the injury to J.P. resulted from Little Achievers’ inadequate supervision, as well as its failure to provide or maintain the swing set in a condition that reduced “the incidence of injuries to children in the event of falls.”

38. The testimony establishes that Little Achievers was aware that J.P. had a habit of throwing himself backwards onto the ground when he became angry or frustrated. However, when

    J.P. sat on the swing on July 28, 2017, no Little Achievers staff member stood close enough to J.P. to ensure that he would not injury himself should he “fall out.” The Department persuasively argues that to “actively watch” J.P. and respond to his needs, Little Achievers personnel should have positioned themselves

    
    

    directly beside or behind him while he used the swing set. (Or, Little Achievers should not have allowed J.P. to play on the swing at all.) Consequently, by not adequately supervising J.P. while he used the swing, Little Achievers violated rule 65C- 22.001(5)(a).

39. The evidence also shows that Little Achievers violated rule 65C-22.002(11)(b) regarding outdoor equipment. First, Little Achievers failed to provide a swing set that was suitable for J.P.’s “age and development” as required by rule 65C- 22.002(11)(b)1. The Department convincingly argues that a regular, flat seat was inappropriate for J.P. to safely use by himself. Mr. Young persuasively testified that, to accommodate a child of J.P.’s age and development, Little Achievers should have equipped the swing set with a “basket” seat, or a some other seat style that would have more securely fastened a young child onto the swing.

40. Further, Little Achievers violated rule 65C- 22.002(11)(b)3. by not maintaining a ground cover under the swing set that provided “resilience” so as to “reduce the incidence of injuries to children in the event of falls.” At one point, Little Achievers had covered its playground, including the area beneath the swing set, with mulch. However, on the date of J.P.’s accident, the mulch had been brushed aside, leaving only hard-packed dirt. The undersigned notes Ms. Stewart’s point that

    
    

    a layer of mulch would not have guaranteed that J.P. would not have injured his arm when he fell. However, rule 65C- 22.002(11)(b)3. requires Little Achievers to maintain the ground cover in a manner that will “reduce,” not prevent, the incidence of injuries. In this case, by not ensuring that adequate mulch was spread under the swing set, Little Achievers failed to meet this obligation.

41. Consequently, the testimony and evidence presented at the final hearing establishes, by clear and convincing evidence, that, on July 28, 2017, Little Achievers failed to adequately supervise J.P. while he was playing on the swing set in Little Achievers’ playground. Further, Little Achievers failed to provide a swing set that was suitable for J.P.’s age and development, as well as failed to maintain the ground cover beneath the swing set in a manner that would have reduced the incidence of injury. Therefore, the Department met its burden of proving that Little Achievers violated section rule 65C- 22.001(5)(a) and rule 65C-22.002(11)(b).

42. Under section 402.3107/, the Department is authorized to impose disciplinary sanctions for violations of child care facility standards. Section 402.310 states, 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.

    
    

43. In determining the appropriate discipline, section 402.310(1)(b) states that 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.

    
    

44. Based on the evidence in the record, the undersigned concludes that an administrative fine against Little Achievers’ child care license is the appropriate sanction.8/ Section 402.310(1)(a)1. and rule 65C-22.010(2)(e)1.a instruct that the Department may impose a fine of up to $500 per violation if the violation(s) caused serious harm. The undersigned finds that the Department’s intended administrative fine of $500 ($250 for each rule violation) is appropriate under these circumstances in which

    
    

    J.P.’s fall resulted in a supracondylar fracture of his right

    
    

    arm.

    
    

45. In sum, the competent substantial evidence in the

record establishes, by clear and convincing evidence, that Little Achievers failed to adequately supervise a child (J.P.) while he was playing on its outdoor equipment. Further, Little Achievers failed to provide and maintain a swing set in a manner that was suitable for the child’s age, as well as in a condition that would reduce the incidence of injuries. Accordingly, the Department proved that it may discipline Little Achievers for two violations of child care licensing standards.

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 to impose an administrative fine against Little Achievers in the amount of $500 for two Class I violations.

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

S

J. BRUCE CULPEPPER 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 June, 2018.

ENDNOTES

1/ Unless otherwise stated, all statutory references are to the 2017 codification of the Florida Statutes and administrative rules.

2/ 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).

3/ Initials are used for J.P.’s (a minor) name to maintain confidentiality.

4/ In the Administrative Complaint, the Department identified the second charge against Little Achievers as a Class II violation of 65C-22.002(11)(b)(3). However, as authorized under rule 65C- 22.010(2)(c), the Department escalated this charge to a Class I violation, asserting that Little Achievers’ misconduct resulted in serious harm to J.P.

5/ Rule 65C-22.001 was amended on November 25, 2017. The undersigned applied the version of the rule that was in effect on the date of J.P.’s injury (with an effective date of August 1, 2013).

6/ Rule 65C-22.002 was amended on November 25, 2017. The undersigned applied the version of the rule that was in effect on the date of J.P.’s injury (with an effective date of August 1, 2013).

7/ See also rule 65C-22.010(2) which states:

(e) Disciplinary sanctions for licensing violations that occur within a two year period shall be progressively enforced 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., issue an administrative complaint imposing a fine not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine.

As with the rules identified in endnotes 1 and 2 above,

rule 65C-22.010 was amended on November 25, 2017. The version of the rule that was in effect on the date of J.P.’s injury was applied in this matter (with an effective date of August 1, 2013).

8/ As explained in endnote 3 above, the Department escalated Little Achievers’ violation of rule 65C-22.002(11)(b) to a Class I violation based on J.P.’s injury. The undersigned finds that Little Achievers’ misconduct did result in serious harm to

J.P. Therefore, charging Little Achievers’ with a Class I violation of 65C-22.002(11)(b) is appropriate.

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Brian Christopher Meola, Esquire Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801 (eServed)

Marcia Stewart

Little Achievers Learning Center 1440 North Pine Hills Road Orlando, Florida 32808

Mike Carroll, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204Z

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: 18-000388

Orders for Case No: 18-000388