STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

RAISING ANGELS CHILD DEVELOPMENT CENTER,

Respondent.

/

Case Nos. 18-1021

18-1112

RECOMMENDED ORDER

On April 19, 2018, the final hearing was held in this case via video teleconference at sites in Orlando and Tallahassee, Florida, before J. D. Parrish, Administrative Law Judge, Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Brian Christopher Meola, Esquire

Department of Children and Families

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

For Respondent: Carolyn Bagley, Owner

Dennis Bagley, Owner Raising Angels CDC, Inc. 1720 South Rio Grande Avenue Orlando, Florida 32805

STATEMENT OF THE ISSUE

Whether the Department of Children and Families (DCF or Petitioner) should impose sanctions against Respondent, Raising

Angels Child Development Center (Respondent), for alleged violations in the operation of a child care center.

PRELIMINARY STATEMENT

With regard to DOAH Case No. 18-1021, Petitioner issued an Administrative Complaint on August 31, 2017, that alleged Respondent’s facility had insufficient staff on two inspection occasions (November 22, 2016, and August 15, 2017). Respondent timely challenged the allegation and requested an administrative hearing.

With regard to DOAH Case No. 18-1112, Petitioner issued an Administrative Complaint on December 27, 2017, that alleged Respondent’s employee failed to comply with the ten hours of annual in-service training required for staff. Respondent timely challenged the allegation and requested an administrative hearing.

After Petitioner referred the cases to DOAH, they were consolidated and scheduled for hearing. At the hearing Petitioner presented testimony from Racheal Cortes, records custodian; Marquencia Fulton, family service counselor; and Christina Bryant, family service supervisor. Petitioner’s Exhibits A through H were admitted into evidence. Respondent offered the testimony of Carolyn and Dennis Bagley.

On April 30, 2018, Respondent filed a Motion to Compel Additional Discovery. The substance of the motion was

previously addressed at hearing and denied. Petitioner is not required to create records in order to answer allegations raised by a party. The testimony of Racheal Cortes was accepted as credible and dispositive of Petitioner’s obligation to provide discovery documents. Respondent’s motion of April 30, 2018, is denied.

A transcript of the proceedings was not filed. The parties were afforded 20 days from the hearing within which to file proposed orders. Petitioner’s proposal was timely filed and has been considered in the preparation of this Order. Respondent did not file a proposed order.

FINDINGS OF FACT

1. Petitioner is charged by law to regulate and inspect all child care facilities in the state of Florida to assure compliance with all licensing standards. Licensing standards are defined by statute and rule. Inspections of licensed facilities are routinely scheduled to verify compliance with all standards.

2. Respondent is licensed by DCF to operate a child care facility at 1720 Rio Grande Avenue, Orlando, Florida 32808.

3. On March 17, 2017, DCF entered a Final Order imposing a fine in the amount of $50.00 against Respondent based upon a Settlement Agreement that acknowledged a violation of the ratio standard for licensed child care facilities. At all times

   
   

   material to the allegations of this case, Respondent was aware of ratio standards applicable to its facility. Moreover, Respondent was aware that DCF performs inspections to assure compliance with the ratio standards.

4. Marquencia Fulton, family service counselor, is employed by Petitioner and routinely performs inspections of licensed child care facilities assigned to her. Ms. Fulton was assigned to inspect Respondent’s facility to verify compliance with licensing standards.

5. On August 17, 2017, Ms. Fulton went to Respondent’s facility to conduct an inspection.

6. Respondent maintains a video system to record all activities within its facility. The video was admitted into evidence by both parties and was reviewed multiple times at hearing.

7. As evidenced by the video and photographs received in evidence, Respondent’s facility is divided into two distinct areas. The front entry area houses infants through toddlers. A door connects the infant room to a rear room housing older preschool children. If left open, the door would allow walking children to enter the rear room where the older children are located.

8. On the date of inspection, Ms. Fulton entered the front area and the door to the rear room was open. As Ms. Fulton moved

   
   

   from the front area to the rear room, she observed a one-year-old child in the lap of a worker in the rear room. Because the one- year-old was in the rear room, DCF considers the licensing standard applicable to one-year-olds to apply to the entire area.

9. Because there were too many children in the rear area (applying the standard applicable to one-year-olds), Petitioner cited Respondent with a ratio violation.

10. Had the one-year-old stayed in his proper area, the facility would have been in compliance with the ratio standard.

11. Had Respondent kept the door between the areas closed and thereby prevented the child from leaving the front area, the facility would have been in compliance with the ratio standard.

12. Respondent had sufficient staff on site to meet the ratio standard had all the children remained in their designated areas, therefore Respondent maintains it was in compliance with the applicable standard.

13. Because Respondent allowed the child to stray to the rear area, thereby requiring more supervision for that area, Petitioner maintains Respondent violated the ratio standard.

14. Respondent failed to comply with the licensing ratio standard on the date of the inspection. Respondent was required to either keep the door closed to prevent children from entering the rear area of the facility or to have more staff to supervise the two areas of the facility.

    
    

15. Supervision could not be provided to the rear area by persons standing in the front area of the facility. Similarly, supervision for the front area could not be provided by persons standing in the rear area. In order to meet ratio standards, Respondent was required to keep supervising personnel in the area designated to them and to keep children in their appropriate location.

16. Respondent’s staff met in-service training

    
    

    requirements.

    
    

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2017).

18. In this case, Petitioner bears the burden of proof to establish by clear and convincing evidence that Respondent committed the acts complained of in the Administrative Complaints. See Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris

    v. Turlington, 510 So. 2d 292 (Fla. 1987); and Pou v. Dep’t of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).

19. “Clear and convincing” evidence was described by the court in Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116 n.5 (Fla. 1st DCA 1989),

    as follows:

    
    

    [C]lear 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 evidence 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 the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

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

    
    

    See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey,

    
    

    645 So. 2d 398 (Fla. 1994); and Walker v. Fla. Dep’t of Bus. & Prof’l Reg., 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J.,

    dissenting).

    
    

20. Section 402.305(4), Florida Statutes, provides the staff-to-children ratio supervision standards for licensed child care providers. Pertinent to this case are the following standards:

    (4) STAFF-TO-CHILDREN RATIO.—

    
    

    (a) Minimum standards for the care of children in a licensed child care facility as established by rule of the department must include:

    
    

    1. For children from birth through 1 year of age, there must be one child care personnel for every four children.

       
       

    2. For children 1 year of age or older, but under 2 years of age, there must be one child care personnel for every six children.

    
    

21. Florida Administrative Code Rule 65C-22.001 provides in

    
    

    part:

    
    

    (5) Supervision.

    
    

    1. Children that are delivered to a location offsite from the facility by someone other than the parent or guardian become the responsibility of the child care program at that designated location and time as agreed upon by the provider and the parent/guardian. The provider is responsible for the supervision of the child upon the child’s arrival at the designated point. If a child is not present at the time of pick-up, prior to leaving the designated location, child care personnel must verify the whereabouts of the child.

       
       

    2. Direct 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. 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. (Emphasis added).

    
    

22. Petitioner has established by clear and convincing evidence that Respondent committed a staff-to-student ratio violation. Although not leading to injury or compromising the safety of the children in Respondent’s care, DCF is charged to fairly administer the standards dictated by the Florida Legislature and to work to assure that safety in licensed child care facilities remains paramount. The sanction sought by DCF is

    
    

    the minimum required by law and is legally supported by the facts of this case.

23. With regard to the allegations that Respondent’s employee failed to comply with in-service training requirements, Petitioner failed to meet its burden of proof. The individual named in the Administrative Complaint complied with the requisite

training.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing an administrative fine in the amount of $50.00.

DONE AND ENTERED this 25th day of May, 2018, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH

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 25th day of May, 2018.

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399 (eServed)

Carolyn Bagley Dennis Bagley

Raising Angels CDC, Inc. 1720 South Rio Grande Avenue Orlando, Florida 32805

Brian Christopher Meola, Esquire Department of Children and Families

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

(eServed)

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 204F

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: 18-001112

Orders for Case No: 18-001112