STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND FAMILIES,

vs.

Petitioner,

Case No. 20-4010

LADYBIRD ACADEMY OF ST. CLOUD,

Respondent.

/

RECOMMENDED ORDER

John D.C. Newton, II, Administrative Law Judge of the Division of Administrative Hearings (Division), conducted the final hearing in this matter on November 4, 2020, by Zoom conference.

APPEARANCES

For Petitioner: Brian Christopher Meola, Assistant General Counsel Department of Children and Families

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

For Respondent: Sheila M. Rodriguez-Figueroa, Esquire

150 East Robinson Street, Unit 2409

Orlando, Florida 32801

STATEMENT OF THE ISSUES

1. Did Respondent, Ladybird Academy of St. Cloud (Ladybird), commit a Class I violation of The Child Care Facility Handbook, section 2.8,F.1?

2. If so, what penalty should be imposed?

PRELIMINARY STATEMENT

Petitioner, Department of Children and Families (Department), issued an Administrative Complaint to Ladybird on June 1, 2020. Ladybird disputed the charges of the Administrative Complaint and requested a hearing. The Department referred the dispute to the Division on September 4, 2020, for conduct of the hearing. The undersigned scheduled the hearing to begin November 4, 2020. The hearing was conducted as scheduled.

The Department presented testimony from Shquyla Gully, Michendy Joseph, Jheneal McDuffie, and Tracy McDuffie. Department Exhibits A through F were admitted into evidence. Ladybird presented the testimony of Patricia Peralta. Ladybird Exhibits A through E were accepted into evidence. The parties did not order a transcript. The parties timely filed Proposed Recommended Orders. They have been considered in the preparation of the Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with licensing child care facilities.

2. Ladybird holds a child care facility license from the Department, authorizing it to operate a child care facility. Ms. Peralta was the director of Ladybird at all times material to this matter. The Department had never sanctioned Ladybird.

3. In February 2020, Ladybird was providing child care for N.M., a two- year-old at the time.

4. The events that are the subject of this proceeding occurred on

   February 5, 2020. The incident upon which the Department bases its charges was video recorded.

   
   

5. N.M. and the other children at Ladybird had small cots, elevated slightly off the floor. The cots are made of a slight metal frame with fabric stretched across it. The frames are lightly padded.

6. On February 5, 2020, a Ladybird caregiver, Jennifer Montes, was having difficulty getting N.M. to lay down for a nap. She was sitting on the floor beside the cot. Each time Ms. Montes placed N.M. on the cot, N.M. resisted and tried to get back up. This happened several times.

7. After struggling to get N.M. to stay on the cot, Ms. Montes shoved him down onto the cot from her sitting position. During her attempts to force

   N.M. to remain on the cot, Ms. Montes did not lift N.M. up into the air. During these attempts, N.M.'s head hit the cot frame hard enough to bruise N.M.'s cheek.

8. When N.M. came home, N.M.'s mother noticed a small mark on N.M.'s cheek. It had not been there in the morning when she left N.M. at Ladybird. By the next evening, the mark was a visible bruise. On Friday, February 7, 2020, N.M.'s mother showed Ms. Peralta a photograph of the bruise and asked her to investigate.

9. Ms. Montes had not reported the incident to Ms. Peralta. Over the weekend, Ms. Peralta reviewed the video recordings of the preceding week and identified the incident causing the bruise. On Monday, Ms. Peralta told N.M.'s mother what she learned and showed her the recording. She also discharged Ms. Montes.

10. The evidence does not prove that the bruise required medical care or created a risk of death or serious harm.

    
    

    CONCLUSIONS OF LAW

11. Sections 120.569 and 120.57(1), Florida Statutes (2020), grant the Division jurisdiction over the parties to and the subject matter of this proceeding.

12. The Legislature has charged the Department with the responsibility of

    
    

    licensing child care facilities. §§ 402.301 - 402.319, Fla. Stat. (2019).1 This includes responsibility for imposing sanctions for violations of statutes or rules. § 402.310, Fla. Stat.

13. The Department must prove the grounds for sanctioning Ladybird by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Coke v. Dep't of Child. & Fam. Servs., 704 So. 2d 726 (Fla. 5th DCA 1998).

14. The opinion in Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116 n. 5 (Fla. 1st DCA 1989), defined clear and convincing evidence as follows:

    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 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 of 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).

    
    

15. Also, in disciplinary proceedings, the statutes and rules for which a violation is alleged must be strictly construed in favor of a respondent. Elmariah v. Dep't of Prof'l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA 1988).

16. Sections 402.301 through 402.319, Florida Statutes, establish general guidelines for Department regulation of child care facilities. Section 402.305(1)(c) empowers the Department to adopt rules implementing the standards of sections 402.301 through 402.319.

17. Florida Administrative Code Rule 65C-22.001(6) incorporates the child

    
    

    
    

    1 References to Florida Statutes are to the 2019 codification unless noted otherwise.

    
    

    care standards of "The Child Care Facility Handbook (CCFH)." The CCFH may be viewed at http://www.flrules.org/Gateway/reference.asp?No=Ref- 11491. CCFH section 2.8,F.1.e prohibits "[r]ough or harsh handling of children, including but not limited to: lifting or jerking by one or both arms; pushing; forcing or restricting movement; lifting or moving by grasping clothing; covering a child’s head." The Agency proved by clear and convincing evidence that Ladybird violated this prohibition.

18. Section 402.310(1)(a) authorizes the Department to administer disciplinary sanctions. It may impose a fine not to exceed $100 per day. If, however, the violation could or does cause death or serious harm the Department may impose a fine not exceeding $500 per day. Florida Administrative Code Rule 22.010(2)(d)1.a. states that for a licensee's first Class I violation the Department, "shall upon applying the factors in section 402.310(1), F.S., impose a fine of not less than $100 nor more than $500 per day for each violation … ." The rule goes on to incorporate by reference a chart titled "Child Care Facility Standards Classification Summary," available at http://www.flrules.org/Gateway/reference.asp?No=Ref-10471. The chart lists the varied requirements of the CCFH and assigns a violation class to each. The chart assigns Class I to a violation of section 2.8,F.1 of the CCFH.

19. Ms. Montes's actions were rough and harsh handling of N.M. This was a violation of section 2.8,F.1. of the CCFH. Therefore, Ladybird committed a Class I violation.

20. As the Department's rule 65C-22.010(2)(d)1. requires, the factors identified in section 402.310(1). must be considered in setting the fine for Ladybird's violation. Section 402.310(1)(a)1. permits a fine exceeding $100, up to $500, only for violations that "could or [do] cause death or serious harm

    … ."

    
    

21. The evidence does not produce a firm belief, without hesitancy, that Ms. Montes's rough treatment and harsh handling of the child did or could have caused death or serious harm. Therefore the maximum fine the Department can impose is $100.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter its final order finding that Respondent, Ladybird Academy of St. Cloud, committed a Class I violation of The Child Care Facility Handbook, section 2.8,F.1., and imposing a fine of $100.00.

DONE AND ENTERED this 30th day of November, 2020, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 30th day of November, 2020.

COPIES FURNISHED:

Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 (eServed)

Brian Christopher Meola, Assistant General Counsel Department of Children and Families

Suite S-1129

400 West Robinson Street Orlando, Florida 32801 (eServed)

Patricia Peralta

Ladybird Academy of St. Cloud 3475 Progress Lane

St. Cloud, Florida 34769

Sheila M. Rodriguez-Figueroa, Esquire Unit 2409

150 East Robinson Street Orlando, Florida 32801 (eServed)

Javier A. Enriquez, General Counsel 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: 20-004010

Orders for Case No: 20-004010