Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations:
a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes.
This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form
5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C.
b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as
provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC.
Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month.
Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy.
On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On
December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018.
Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018.
CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview.
During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and
Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines.
B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer.
Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and
B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview.
CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019.
When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview.
A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also.
In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck.
During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads.
On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later.
During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present.
Mr. Council admitted that Ms. Gaines had told him
(Mr. Council) to get the required background screening completed, but he had not done so.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569, 120.57(1), and 402.310, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010(3). This proceeding is de novo. § 120.57(1)(k), Fla. Stat.
This is a disciplinary proceeding against Respondent’s child care facility license, pursuant to section 402.310(2).
Petitioner, as the party seeking to impose discipline, has the burden to prove the allegations in the AC by clear and convincing evidence. See § 120.57(1)(j), Fla. Stat.; Coke v.
Dep’t of Child. & Fam. Servs., 704 So. 2d 726 (Fla. 5th DCA 1998).
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:
Clear 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 testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(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 Elect. Corp. v. Shuler Bros., 590 So. 2d 986, 989
(Fla. 1991).
DCF is the agency charged with the responsibility of licensing child care facilities in the State of Florida.
§§ 402.301-402.319, Fla. Stat. DCF is charged in section 402.305(1) with establishing, by rule, licensing standards to address the health, sanitation, safety and physical surroundings; the health and nutrition; and the child development needs of all children in child care. The relevant rules pertaining to this proceeding are located in chapter 65C-22.
Section 402.310 authorizes the DCF to take disciplinary action against the license of a child care facility for violations of any provision of sections 402.301 through 402.319 or the rules adopted thereunder, and authorizes the Department to impose an administrative fine, to convert the license to probation status, and/or deny, suspend, or revoke the license.
The allegations of fact set forth in the AC are the grounds upon which this proceeding is predicated. Trevisani v.
Dep’t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see
also Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the scope of this proceeding is properly restricted to those matters as framed by Petitioner in the AC. M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755, 763 (Fla.
2d DCA 2008).
Additionally, because licensing statutes are penal in nature, they are strictly construed in favor of the licensee. Elmariah v. Dep’t of Prof’l Reg., 574 So. 2d 164, 165 (Fla. 1st DCA 1990); Taylor v. Dep’t of Prof’l Reg., 534 So. 2d 782, 784
(Fla. 1st DCA 1988). Disciplinary statutes and rules must be construed in terms of their literal meaning, and the language used may not be expanded to broaden its application. Beckett v.
Dep’t of Fin. Servs., 982 So. 2d 94, 99-100 (Fla. 1st DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st
DCA 1991).
The AC is poorly drafted; however, it provides the Academy with notice of the allegations.
In paragraph 3.a., DCF alleges a child was hit on the face with a ruler and slapped. Although the specific child was not identified by initials, B.T. confirmed to CPI Smith and in B.T.’s video-recorded interview that he was hit on the face. CPI Smith secured photographic evidence of B.T.’s bruise and scratch near his eye. This alleged child abuse was proven.
Also in paragraph 3.a., DCF alleges a teacher hit “another child on the chest” with a ruler, yet the specific child was not identified, even by initials. None of the three children who participated in the video-recorded interviews spoke to that specific alleged abuse.
With regard to paragraph 3.a.i., Counselor Brown was at the Academy on December 28, 2018, and questioned Mr. Council.
The specific allegation in the AC was that Mr. Council was located in a room with children present, yet no evidence was presented that he was alone in a room with the children, or that a properly screened teacher was or was not present.
With regard to paragraph 3.a.ii., DCF’s employees interviewed Ms. Gaines and ascertained that she has foster children. No evidence was presented to relate the foster children to the business operation of the Academy, nor or there allegations in the AC to that effect.
In paragraph 3.a.iii., DCF’s employees interviewed Ms. Gaines about her foster children G.M. and M.M., and some alleged form of discipline to those foster children. Again, no evidence was presented to relate the foster children to the business operation of the Academy, nor are there allegations in the AC to that effect.
In paragraph 3.a.iv., four children are specifically listed: A.J., A.J. (identified as AK.J.), O.E., and T.J. Each
child alleged some form of abuse. Neither O.E. nor T.J. participated in the video-recorded interviews, and no evidence was presented to substantiate the allegations.
Paragraph 3.a.v. provides, “The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified.” B.T., A.J. and AK.J. participated in the video-recorded interviews, however, not all the “children” did so.
“Child care personnel” includes 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. The term is not limited to those with direct contact with children. As such, even though
Mr. Council had a child at the facility, when he performed maintenance duties at the facility during operating hours, Mr. Council would fall under this definition.
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.
Section 8.2 of the CCF Handbook provides, in pertinent
part:
Child Safety.
Acts or omissions that meet the definition of child abuse or neglect provided in Chapter 39, F.S., constitute a violation of the standards in section 402.301-.319, F.S., and will support imposition of a sanction, as provided in Section 402.310, F.S.
“Abuse” is defined in section 39.01(2), Florida Statutes, as:
[A]ny willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired. Abuse of a child includes the birth of a new child into a family during the course of an open dependency case when the parent or caregiver has been determined to lack the protective capacity to safely care for the children in the home and has not substantially complied with the case plan towards successful reunification or met the conditions for return of the children into the home. Abuse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.
Rule 65C-22.010 provides, in pertinent part: Enforcement.
This rule establishes the grounds under which the Department shall issue an administrative fine, deny, suspend, revoke a license or registration or place a licensee or
registrant on probation status as well as uniform system of procedures to impose disciplinary sanctions.
(1) Definitions.
* * *
(e) “Violation” means noncompliance with a licensing standard as described in an inspection report resulting from an inspection under Section 402.311, F.S., as follows with regard to Class I, Class II, and Class III Violations.
1. “Class I Violation” is an incident of noncompliance with a Class I standard as described on CF-FSP Form 5316, October 2017. Child Care Facility Standards Classification Summary, which is incorporated by reference. A copy of the CF-FSP Form 5316 may be obtained from the Department’s website at www.myflfamilies.com/childcare or from the following link: http://www.flrules.org/ Gateway/reference.asp?No=Ref-08739. However, any violation of a Class II standard that results in death or serious harm to a child shall escalate to a Class I violation. The effective date of a termination of a provider’s Gold Seal Quality Care designation is the date of the Department’s written notification to the provider. Class I violations are the most serious in nature.
Rule 65C-22.010(2)(d)4/ provides for progressive discipline when Class I violations are found as follows:
1. Class I Violations.
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., impose a fine not less than $100.00 nor more than $500.00 per day for each violation, and may impose other disciplinary sanctions in addition to the fine.
For the third and subsequent violation of a Class I standard, the Department shall suspend, deny or revoke the license. The Department, upon applying the factors in section 402.310(1), F.S., may also impose a fine not less than $100.00 nor more than
$500.00 per day for each violation in addition to any other disciplinary sanction.
One instance of child abuse is one too many. In this instance, DCF established by clear and convincing evidence that the Academy’s personnel caused injuries to children B.T., A.J. and AK.J., while they were in Respondent’s care; three Class I violations.
Petitioner met the burden of establishing that Mr. Council was not properly screened to be performing
