STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

vs.

Petitioner,

Case No. 20-3102

ALL ABOARD DAY CARE, INC.,

Respondent.

/

RECOMMENDED ORDER

On September 21, 2020, Hetal Desai, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by Zoom.

APPEARANCES

For Petitioner: George Gardner, Esquire

Department of Children and Families Post Office Box 60085

Fort Myers, Florida 33906

For Respondent: Ann Marie Walsh, pro se

All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990

STATEMENT OF THE ISSUES

Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.

PRELIMINARY STATEMENT

On May 26, 2020, Petitioner, the Department of Children and Families (the Department), served Respondent, All Aboard Day Care, Inc. (All Aboard), an Administrative Complaint Revoking Gold Seal Designation and Imposing Fine (Complaint). The Complaint alleged in relevant part:

1. Class 1: Licensing Standard 4-18 Supervision (unscreened individual alone with children.)

   
   

   4. On November 07, 2019, a routine inspection was conducted and the facility was found to be out of compliance with standard 4-18. An unscreened individual was left alone with children in care. After reviewing staff files, the Child Care Regulation Counselor found that IE (hired 8/15/2019) was not properly screened. Technical assistance was provided and the director and assistant director were shown how to conduct background screenings.

   
   

   * * *

   
   

2. Class 2: Licensing Standard 45-02 Background Screen Documents (Missing Level 2 Screen Documents)

1. On July 10, 2018, a renewal inspection was conducted, and the facility was found to be out of compliance with standard 45-02 background screening document. After reviewing staff files the Child Care Regulation Counselor found that, the file for staff member KD (hire date 9/5/2017) did not have documentation of a level 2 background screening. Technical assistance was provided to the director and assistant director regarding properly documenting background screening for all staff members. This is the facility's first violation of this Class 2 standard. Therefore, technical assistance was provided.

   
   

2. On November 07, 2019, a routine inspection was conducted, and the facility was found to be out of

compliance with standard 45-02 background screening document. After reviewing staff files the Child Care Regulation Counselor found that, the file for staff member (KH hire date 10/14/2019) did not have documentation of a level 2 background screening. Technical assistance was provided to the director and assistant director regarding properly documenting background screening for all staff members. This is the facility's second violation of this Class 2 standard. Therefore, further action is needed.

The Department sought to impose against All Aboard a $500 fine for the Class I violation and a $50 fine for the Class II violation. Additionally, a finding of a Class I violation requires the Department to terminate All Aboard's Gold Seal Quality Care designation, pursuant to section 402.281(4)(a), Florida Statutes (2019).1

On June 1, 2020, in response to the Complaint, Respondent submitted a letter requesting a formal administrative hearing. The Department referred the matter to DOAH on July 13, 2020, and it was assigned to the undersigned Administrative Law Judge for hearing.

A pre-hearing conference was duly noticed and held via Zoom on September 16, 2020.2 No representative from All Aboard attended that hearing.

1 All references to the Florida Statutes and the Florida Administrative Code are to the 2019 versions.

2 Prior to the pre-hearing conference, the undersigned issued an Amended Notice of Pre- hearing Conference by Zoom notifying the parties of the date, time, and directions to participate in the conference. The Notice was served on all parties electronically and was available on the online docket on the DOAH website. There was no indication Petitioner failed to receive this Notice or that the Notice was undeliverable. During the pre-hearing conference, both the Department's counsel and DOAH staff attempted to contact All Aboard's director, but could not do so.

At the final hearing, the Department offered the testimony of Chemenda Sawyer, a former Department family services counselor; James Palmer, a Department licensing supervisor; and Linda McClay, All Aboard's assistant director. Petitioner's Exhibits P1 through P12 were admitted into evidence. Respondent's director, Anne Marie Walsh, testified on behalf of All Aboard and Respondent's Exhibits R1 through R12 were admitted into evidence.3

The Transcript was filed with DOAH on October 8, 2020. Both parties filed timely proposed recommended orders, which 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.

2. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years.

3. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard.

4. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have

   
   

   3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection.

   
   

   appropriate background information for Isabella Escalona, one of its employees.

5. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019.

   Ms. Escalona's employment file did not contain a more recent background check.

6. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available.

   Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to

   Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status.

   Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings.

7. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check.

8. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services.

9. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report.

   
   

10. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in

    Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children.

11. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children:

    We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature.

    
    

12. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare.

13. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case.

14. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.]

    
    

    4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime.

    
    

    5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete.

    
    

    Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen."

15. All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime).

16. The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children.

17. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez.

18. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection.

19. All three of these staff members were ultimately deemed eligible.

20. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.

    
    

    CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction. See

    §§ 120.569 and 120.57(1), Fla. Stat.

22. The Department is tasked with the responsibility of licensing child care facilities, including administration of the Gold Seal Quality Care designation program. §§ 402.281 and 402.301-402.319, Fla. Stat.

23. Although not acknowledged by the parties, the Department must prove its charges 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).

24. Section 402.281(4)(a) provides that in order to maintain a Gold Seal designation a child care provider must not have a "class I violation."6 Because Class I violations "are the most serious in nature, pose an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well-being of a child," the Department must terminate the designation if the provider is found guilty of a class I violation. Fla. Admin. Code R. 65C-22.009(3)(b) and 65C-22.010(1)(d)1.

25. "Child care personnel" includes owners, operators, employees, and volunteers working in a child care facility. § 402.302(3), Fla. Stat. All "child care personnel" must undergo Level II background screening for "good moral character" and be free of having pending charges or guilty of a list of certain offenses. See §§ 402.305(2)(a) and 435.04(2), Fla. Stat.

26. Section 435.06, Florida Statutes, provides in pertinent part:

    
    

    (2)(a) An employee may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed

    
    

    6 Section 402.281 provides in pertinent part:

    
    

    Gold Seal Quality Care program.

    
    

    * * *

    
    

    1. In order to obtain and maintain a designation as a Gold Seal Quality Care provider, a child care facility. A large family child care home, or family day care home must meet the following additional criteria:

       
       

       1. The child care provider must not have had any class I violations, as defined by rule, within 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 has no class I violations for a period of two years.

          
          

          and demonstrates the absence of any grounds for the denial or termination of employment of employment.

          
          

          * * *

          
          

          (d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment. (emphasis added).

          
          

27. Florida Administrative Code Rule 65C-22.001(6) provides that child care facilities must follow the standards found in the "Child Care Facility Handbook" (Handbook). Section 5.1. of the Handbook provides:

    I. An individual may be hired under one of these circumstances:

    
    

    * * *

    
    

    (3) Screening requests have been initiated, but before results have been received, the individual may be hired for training and orientation purposes only in accordance with s. 435.06 (2)(d), Florida Statutes. Until screening is complete showing good moral character, the employee may not be in contact with the children as specified in this statute. (emphasis added).

    
    

28. Section 5.2.C. of the Handbook provides:

    
    

    Child care personnel must be rescreened following a break in employment in the child care industry that exceeds 90 days. These child care personnel/individuals shall not have unsupervised contact with children in care. (emphasis added).

    
    

29. Section 7.4.1 of the Handbook addresses the background screening documents that must be kept in personnel records found at a child care facility. Subsection C requires "[a] copy of the eligible results, for the Level 2 screening, generated from the Clearinghouse must be on record for each personnel."

30. Although the Department established Ms. Escalona was required to be re-screened because she had a 90-day break in employment prior to being hired by All Aboard, it did not establish that she had unsupervised contact with children. Thus, the Department failed to establish by clear and convincing evidence that All Aboard committed a Class I violation.

31. There is clear and convincing evidence of a Class II violation. The Department established that All Aboard failed to have proper documentation related to its staff on two occasions: July 5 and November 7, 2019.

32. Rule 65C-22.010(2)(d)2.a. provides in relevant part: "For the second violation of the same Class II standard, the Department shall impose an administrative fine of 50.00 for each such violation." As such, a $50.00 fine is appropriate against All Aboard for violation of section 7.4.1.C. of the Handbook.

RECOMMENDATION

It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine.

DONE AND ENTERED this 23rd day of October, 2020, 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 23rd day of October, 2020.

COPIES FURNISHED:

George Gardner, Esquire Department of Children and Families Post Office Box 60085

Fort Myers, Florida 33906 (eServed)

Lacey Kantor, Esquire

Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Ann Marie Walsh

All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed)

Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Chad Poppell, Secretary

The Department of Children and Families Building 1, Room 202

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: 20-003102

Orders for Case No: 20-003102