STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

Petitioner,

vs.

ROYAL ACADEMY PRESCHOOL,

Respondent.

/

Case No. 19-0158

RECOMMENDED ORDER

On February 21, 2019, Hetal Desai, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Altamonte Springs and Tallahassee, Florida.

APPEARANCES

For Petitioner: Brian Christopher Meola, Esquire

Department of Children and Families Suite S-1129

400 West Robinson Street Orlando, Florida 32801

For Respondent: Howard S. Marks, Esquire

Burr & Forman LLP Suite 800

200 South Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent employed an individual who was ineligible to work in a child care facility due to his disqualifying

criminal history and, if so, what penalty Petitioner should

impose.

PRELIMINARY STATEMENT

On November 27, 2018, Petitioner, the Department of Children and Families (the Department) served an Administrative Complaint Revoking Gold Seal Designation and Imposing Fine (Complaint) on Respondent, Royal Academy Preschool (Royal). The Complaint alleged the following:

Class I Violation:

a. On October 15, 2018, the personnel record for the individual indicated the person had been arrested for and are [sic] awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to any offense noted in Section 435.04, Florida Statutes, which disqualifies the person from employment and the owner/operation failed to take appropriate action in that Miguel Lespier was found working at the facility while disqualified to work in child care. This is a violation of Section 435.04, Florida Statutes. This constitutes a Class I Violation of Child Care Licensing Standard, CF-FSP Form 5316, 45-[3], October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C.[1/]

The Department sought to impose a $250.00 fine against Royal. Additionally, a finding of a Class I violation requires the Department to terminate Royal’s Gold Seal Quality Care designation, pursuant to section 402.281(4)(a), Florida Statutes (2018).2/

Respondent submitted a Response and Request for Formal Administrative Hearing Pursuant to section 120.57(1), Florida Statutes, to the Department on December 17, 2018. The Department referred the matter to DOAH on January 9, 2019, and it was assigned to the undersigned for hearing.

At the hearing, Petitioner called Jeremy Ross, a “Family Services Counselor” for the Department. Petitioner’s Exhibits A, B, and C were admitted into evidence. Respondent called two witnesses: Sarah McCain, a Royal employee (and the owner’s daughter); and Sara Henein, Royal’s director. Respondent’s Exhibit 2 was admitted into evidence.

The Transcript was filed on March 20, 2019. The Department filed its proposed recommended order on March 14, 2019; Respondent filed its proposed recommended order on April 1, 2019. Both proposed recommended orders were timely and have been duly considered.

FINDINGS OF FACT

1. The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010.

2. Respondent is a licensed child care facility (License ID number C18SE0109) operating at 295 Oxford Road, Fern Park, Florida. It has been operated by the same owner for 25 years.

   
   

3. As a Family Service Counselor, Mr. Ross’s duties include conducting inspections of licensed child care facilities, including Royal.

4. On October 15, 2018, in the afternoon around 2:00 p.m., Mr. Ross arrived at Royal to conduct a renewal inspection. Although his appearance for the inspection was unannounced, Royal had applied to renew its license, which would require an inspection.

5. Mr. Ross’s inspection lasted for approximately three hours. During this time, there were approximately 56 children and ten staff members at the Royal facility.

6. As part of his inspection, Mr. Ross checked Royal’s personnel files for proper employment background screening documentation on all the employees. Because he had inspected Royal previously, he was familiar with some of the staff.

7. While Mr. Ross was in Royal’s administrative office, he saw an unfamiliar adult male outside in the front yard of the campus. Later, the same man walked into the building and past the office. At this point, Mr. Ross asked Royal’s director,

   Ms. Henein, about the identity of the man.

   
   

8. Ms. Henein informed Mr. Ross that the man, Miguel Lespier, was an employee; he was not a parent or visitor. Royal had hired Mr. Lespier to perform maintenance on the facility. Mr. Ross then asked for Mr. Lespier’s employment documentation.

   
   

   Ms. Henein did not provide Mr. Ross with any hiring documentation such as a personnel file, resume, application, tax form, or job description.

9. Instead, Ms. Henein claimed Mr. Lespier had just recently been hired and it was his first day. She then went to a computer and printed out a report on Mr. Lespier from the Department’s Level II background clearinghouse.

10. The Department established that employees of a child care facility when children are present must go through a

    Level II background screening by the Department’s clearinghouse, pursuant to section 435.04, Florida Statutes. As explained by Mr. Ross, the screening consists of a security background investigation to ensure an applicant or employee does not have a pending charge against him or her, or has not been found guilty of the offenses listed in section 435.04 or similar types of offenses in other jurisdictions. The Department clearinghouse screens for both federal and state offenses in order to determine whether the person is eligible for employment in a child care facility.

11. The content of the printout is disputed. Ms. Henein claimed the printout included a document titled “Public Rap Sheet.” Mr. Ross did not believe he saw the “Public Rap Sheet,” but testified he relied solely on the document titled “CLH BGS – Person Profile.” Ms. Henein’s claim that she provided the

    
    

    “Public Rap Sheet” to Mr. Ross is suspect given that it is dated October 16, 2018, a day after the inspection.

12. Even if Ms. Henein’s testimony is to be believed, the “Public Rap Sheet” does not indicate whether Mr. Lespier is eligible for employment as a child care provider, nor does it state whether he has cleared a Level II background screening. Rather, the “Public Rap Sheet” indicates Mr. Lespier had “no Florida criminal history.” It made no findings as to whether he had a criminal history in other jurisdictions.

13. The “CLH BGS – Person Profile” has Mr. Lespier’s photograph and states: “A criminal record may exist for this applicant.” It also indicates a screening request was made by Royal on October 2, 2018; and that the Department found

    Mr. Lespier “Not Eligible” in the categories of “DCF General,” “DCF Child Care,” and “DCF Substance Abuse-Adult Only” on October 5, 2018. The “CLH BGS - Person Profile” indicates it was printed on October 15, 2018.

14. Regardless, Ms. Henein admitted Mr. Lespier was not eligible for employment based on the results from the Department clearinghouse. “I pulled it up and the first page it’s the rap page – when I saw, it says eligible on it on the first page. And this was okay. And then when I printed out the other pages it says he was not eligible.”

    
    

15. Based on the printout, Mr. Ross asked Ms. Henein to tell Mr. Lespier to leave the facility, which she did. Mr. Ross later learned Royal had terminated Mr. Lespier from employment.

16. Royal never disputed Mr. Lespier was deemed “not eligible,” nor does it deny he was an employee. Rather, it claims, the day of the inspection was Mr. Lespier’s first time at the facility, and that he was not supposed to be at Royal until after operating hours. Moreover, it claims it should not be found guilty of a violation because it terminated him as soon as it was made aware that he was “not eligible.”

17. Ms. Henein’s demeanor at the hearing and the lack of consistency in her testimony make Royal’s version of events unreliable. For example, she was unsure of Mr. Lespier’s name (she thought it was Miguel Lopez). She also claimed Mr. Lespier had never been at the facility prior to October 15, 2018, but later testified that on the date of the inspection, Mr. Lespier walked into the building, walked directly to a locked maintenance closet, and knew where the key was located.

18. The testimony as to whether Mr. Lespier was hired to perform work during operating hours was inconsistent. For example, although Ms. Henein insisted he was not supposed to be at the facility until after hours on the date of the inspection, if Ms. Henein thought Mr. Lespier was eligible to work during operating hours based on the “Public Rap Sheet,” as she

    
    

    testified, she would have had no reason to have him come only after hours. Ms. Henein later admitted Royal had conducted the Level II background screening on Mr. Lespier because it anticipated he would be working during operating hours, just not on the date of the inspection.

19. When asked about Mr. Lespier’s work schedule, at one point in her testimony, Ms. Henein stated that on the date he was hired, she told Mr. Lespier to come to the facility on

    October 15, 2018, and to arrive after hours. She later testified that she called him the morning of the inspection to report to work that day.

20. Notwithstanding these inconsistencies, the evidence establishes the Level II background results deemed Mr. Lespier “not eligible” to work during operating hours on October 5, 2019; he remained an employee until after the inspection on October 15, 2019; and he was working while children were at the facility.

21. As a result of his inspection, Mr. Ross prepared an inspection report and informed the Department he believed Royal had committed a violation of the background screening requirements by employing a person who was deemed “not eligible” to work during hours when children are present at the facility. The Department then filed the Complaint against Royal.

22. Royal has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding.

    
    

    Royal’s witnesses established that if this designation is revoked, it would lose this funding, and it may be forced to close its facility. As noted below, this designation is terminated upon the final assessment of a Class I violation, which is why Respondent seeks to avoid this determination.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction. See §§ 120.569, 120.57(1), and 402.310(4), Fla.

    Stat.; and Fla. Admin. Code R. 65C-22.010(3).

    
    

24. The burden of proof is on the Department to prove the material allegations by clear and convincing evidence. See

    § 120.57(1)(j), Fla. Stat.; Coke v. Dept. of Child. & Fam.

    
    

    Servs., 704 So. 2d 726 (Fla 5th DCA 1998).

    
    

25. “Child care personnel” include owners, operators, employees, and volunteers working in a child care facility.

    § 402.302(3), Fla. Stat. The statutory definition specifically excludes persons who work in a child care facility after hours when children are not present, and does not apply to parents of children at the facility. Id. The term is not limited to those

    with direct contact with children. As such, a maintenance person who was working during operating hours, such as Mr. Lespier, would fall under this definition.

26. All "child care personnel" must undergo Level II background screening for “good moral character” and must be free

    
    

    of pending charges, and never have been adjudicated guilty of a list of certain offenses. See §§ 402.305(2)(a) and 435.04(2), Fla. Stat.

27. Section 45.3 of Form 5316 makes it a Class I violation for a child care facility to employ a person when the “personnel record for the individual indicated the person had been arrested for and [is] awaiting final disposition of, [has] been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to any offense noted in Section 435.04, Florida Statute[s], which disqualifies the person from employment and the owner/operator failed to take appropriate action.”

28. Here, the “Person Profile” for Mr. Lespier’s Level II background screening, which is the personnel record utilized by the Department to indicate criminal histories, deemed him ineligible for employment. Although Royal claims it took appropriate action by terminating him, it did not do so on October 5, 2019, but rather only after Mr. Lespier’s presence was discovered by Mr. Ross’s inspection. As such, Royal committed a violation of section 45.3 as described in Form 5316.

29. The proposed $250.00 fine is consistent with the range allowable under rule 65C-22.010(2)(d)1.

30. Because it is a Class I violation, the determination that Royal committed this violation necessitates the termination

    
    

    of its Gold Seal Quality Care designation pursuant to section 402.281(4)(a), which states:

    The child care provider must not have had any class I violations, as defined by rule, within the 2 years preceding its application for designation as a Gold Seal Quality Care provider. Commission of a class I violation shall be grounds for termination of the designation as a Gold Seal Quality Care provider until the provider has no class I violations for a period of 2 years.

    
    

31. The undersigned is mindful of Royal’s position that the loss of the Gold Seal designation will have a financial impact that may result in closure of the facility. This impact, however, does not justify slipshod hiring practices or lenient enforcement of child safety laws against the child care facilities that have earned this distinction. The same standards with the same level of enforcement must apply to all child care facilities for the Gold Seal designation to retain any meaning. See Dep’t of Child. and Fam. Servs. v. Su’s Creative Corner

Preschool No. 2, Case No. 18-0644, 2018 Fla. Div. Adm. Hear.

LEXIS 695, at *9 (Fla. DOAH Sept. 7, 2018; Fla. DCF October 3,

2018).

RECOMMENDATION

It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of a Class I violation by allowing an employee who was ineligible due to his background screening results to be present at the facility

during operating hours when children were present, imposing a

$250.00 fine, and terminating Respondent's Gold Seal Quality Care designation.

DONE AND ENTERED this 8th day of April, 2019, in Tallahassee, Leon County, Florida.

S

HETAL DESAI

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 8th day of April, 2019.

ENDNOTES

1/ The inspection report cites to section 45.3 of the “Child Care Licensing Standard, CF-FSP Form 5316, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C.” (Form 5316), but the Complaint alleges a violation of section 45.1. As seen below, Section 45.1 of Form 5316 identifies a Class III violation.

2/ Unless otherwise noted, all references are to the 2018 version of the Florida Statutes and Florida Administrative Code, which were in effect on the date of the violation.

Form 5316, at p.27; located at: https://www.dcf.state.fl.us/programs/childcare/docs/CF- FSP%205316%20Facility%20Classification%20Summary-adoption.pdf.

The description in paragraph 4 of the Complaint clearly corresponds with the definition listed under section 45.3 of Form 5316, a Class I violation. Moreover, in the Pre-hearing Stipulation filed on February 23, 2019, the Department described conduct and issues related to a section 45.3 violation; Respondent simply denied it committed a Class I violation, and failed to raise the mistaken citation issue.

At the final hearing, Respondent, for the first time, raised the issue of the citation mistake in the Complaint. The Department moved to amend the Complaint to correct the citation. The undersigned found there would be no prejudice since the Complaint described a section 45.3 violation. The undersigned granted the Department’s ore tenus motion to amend the Complaint and correct the citation to section 45.3 of Form 5316.

COPIES FURNISHED:

Lacey Kantor, Esquire

Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Howard S. Marks, Esquire Burr & Forman LLP

Suite 800

200 South Orange Avenue Orlando, Florida 32801 (eServed)

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

400 West Robinson Street Orlando, Florida 32801 (eServed)

Chad Poppell, Secretary

Department of Children and Families Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Jackson, 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: 19-000158

Orders for Case No: 19-000158