The Issue The issues in this case are whether Respondent, Department of Children and Families (Department or Respondent), was substantially justified in initiating a disciplinary action against Petitioner, My First Steps of Bradenton, Inc. (My First Steps or Petitioner), and/or whether special circumstances exist that would make it unjust to award attorney's fees and costs to Petitioner pursuant to section 57.111, Florida Statutes (2019).1
Findings Of Fact The Department is the state agency responsible for licensing and regulating child care facilities, to ensure the health and safety of children in care. 3 By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day time period for issuing the Final Order. See Fla. Admin. Code R. 28-106.216. The Department initiated the underlying action by issuing an Administrative Complaint against My First Steps, a licensed child care facility. My First Steps is owned and operated by Carina Piovera. It is organized as a corporation, with its principal office in Florida. When the underlying action was initiated, My First Steps had no more than 25 full-time employees and a net worth of not more than $2,000,000.00. As the parties stipulated, My First Steps is a small business party as defined in section 57.111(3)(d). My First Steps was the prevailing party in the underlying action. The Department was not a nominal party in that action. My First Steps timely filed its application for an award of attorney's fees and costs under section 57.111, less than 60 days after the Final Order was rendered. Petitioner filed an affidavit attesting to the attorney's fees and costs incurred in the underlying action, provided billing records, and submitted an attorney's affidavit attesting to the reasonableness of the hourly rate charged by counsel of record for Petitioner. Respondent filed a counter-affidavit that disputed certain charges and one cost item. At the hearing, Petitioner withdrew the items to which Respondent objected. Petitioner's revised claim, quantified in its Proposed Final Order, is for $7,015.00 in attorney's fees and $507.88 in costs. The revised claim is reasonable, appropriately supported, and not disputed by Respondent. The only disputed issues to be determined are related to the Department's defenses: whether the issuance of the Administrative Complaint was substantially justified; and/or whether special circumstances exist which would make the award of fees and costs to My First Steps unjust. Findings Related to Substantial Justification Defense The Administrative Complaint set forth the following alleged facts that were the basis for the charged violation: On May 30, 2018, K. Alejandra-Pacheco,[4] a child care personnel, worked on an art project with one of the children in her care, while the other children were climbing on up and down the chairs and taking off their shoes. Ms. Alejandra-Pacheco stated that she is not allowed to discipline the children, only the facility director, Carina Piovera. Ms. Piovera came into the classroom and made the children sit down. A.M., a one-year old toddler, was one of the children in the classroom. In it, Ms. Piovera is seen roughly handling A.M. by grabbing him, aggressively wiping his nose, having intense body language when talking to the child, forcefully pushing the child's chair into position at the table, and then aggressively put his hands on the table. A.M. is visibly afraid and upset, crying throughout the interaction with Ms. Piovera, who appears to be intimidating the child. This incident was recorded by the facility camera. The inappropriate discipline described above was frightening to the child and is a Class I violation of child care licensing standards. The charge against My First Steps was as follows: The foregoing facts violate Section 2.8, Child Care Facility Handbook, incorporated by reference in Rule 65C-22.001(6), F.A.C. (2017), which states in part: 2.8 Child Discipline A. The child care facility shall adopt a discipline policy consistent with Section 402.305(12), F.S., including standards that prohibit children from being subjected to discipline which is severe, 4 The staff person identified in the Administrative Complaint as K. Alejandra-Pacheco testified in the underlying action that her full name is Karina Alejandra Briseño Pacheco. She is referred to by different combinations of these four names throughout the record in this case, including Karina Briseño, Karina Pacheco, Alejandra Briseño, and Alejandra Briseño; and the name Briseño is sometimes spelled Briceño. All of these references are to the same person. She is referred to herein as Ms. Pacheco. humiliating, frightening, or associated with food, rest, or toileting. Spanking or any other form of physical punishment is prohibited. * * * The following discipline techniques shall be prohibited in the child care facility: The use of corporal punishment/including, but not limited to: Hitting, spanking, shaking, slapping, twisting, pulling, squeezing, or biting; Demanding excessive physical exercise, excessive rest, or strenuous or bizarre postures; Compelling a child to eat or have in his/her mouth soap, food, spices, or foreign substances; Exposing a child to extreme temperature; Rough 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 penalty sought by the Administrative Complaint for the alleged Class I violation was a fine of $500.00. The factual allegations were primarily based on a video of the incident. The allegations reflect the collective perceptions of a group of Department personnel who met to assess the video when considering whether to issue an Administrative Complaint. The group included Maritza Gonzalez, who was and is the child care licensing supervisor for a region that includes Manatee County, where My First Steps in located; and Mary Beth Wehnes, the Department's expert in this case, who was the Department's regional program safety manager at the time. The Department's perception of the video was as follows: in the beginning, five of the six children circling a table in a classroom were left to their own devices while the teacher, Ms. Pacheco, was engaged in a one-on- one art project with one child at one end of the table. The five children were unruly, understandably so, considering these one- and two-year-olds were not given any appropriate activity, and did not want to sit still and do nothing. Some of the children, including A.M., were standing on their chairs and taking their shoes off; another child was chewing on a shoe. When A.M. hoisted himself up on the table (about 50 seconds into the video), the teacher spoke to him (though there is no audio, so what she said could not be determined). A.M. quickly scooted off the table and into his chair. Ms. Piovera then strode into the room and all of the children appeared to freeze. Ms. Piovera went straight to A.M., got down in front of A.M.'s chair, grabbed him and the chair, and moved in very close to hover over him. Her body language was intimidating, especially to a little one only 18 months old. When Ms. Piovera shifted a little to the side, A.M.'s face was revealed (at the 1:12 mark). He was crying and appeared frightened. Ms. Piovera then reached for a couple of tissues, and roughly wiped/pinched his nose several times, the second time so roughly that his feet flew up and his head went back. Shortly after that, Ms. Piovera forcefully turned and pushed A.M.'s chair, with him in it, up to the table. She then grabbed A.M.'s arms from under the table and forcefully lifted them up, then put them down on the table. A.M. put his head down on the table, continuing to cry. The child next to him also put her head on the table; all of the children seemed scared in reaction to Ms. Piovera. She then left the room. In viewing the video, the Department had the impression that Ms. Piovera came in to discipline the children, considering how the teacher was handling the classroom and how the children were acting before Ms. Piovera entered the room. The Department considered Ms. Piovera's actions in the room to be inappropriate discipline. The Department was concerned with the aggressive, intimidating body language of Ms. Piovera when she aggressively strode into the room, squatted down in front of A.M., grabbed him and his chair, and moved in to hover over him. The Department was concerned with Ms. Piovera's rough physical handling of A.M., when she repeatedly wiped his nose, pinching it as she wiped, so forcefully that she made his feet fly up and head go back. The Department was concerned by Ms. Piovera pushing the child in his chair up to the table, then grabbing his arms from under the table to forcefully lift them up and bring them back down on the table. The Department perceived this rough physical handling of A.M. to be the disciplinary consequence for his misbehavior. The Department considered it to be a serious matter that violated the licensing standards for child discipline, classified by rule as a Class I violation. The Department's decision to issue the Administrative Complaint also took into consideration a joint investigation of My First Steps, following a complaint to the central abuse hotline (Hotline). The complaint was made by A.M.'s mother, based on her observations from a camera feed in A.M.'s classroom at My First Steps. She saved the video to her phone. Ms. Gonzalez received the initial report regarding the incident by email from the child's mother on June 12, 2018, with additional follow-up information provided by the mother through June 15, 2018. Based on the nature of the allegations, Ms. Gonzalez instructed the mother to report the incident to the Hotline, operated by a different Department division. The Hotline received the mother's report of the incident, accepted the complaint for investigation, and referred it for a joint investigation: a child protective investigation to be conducted pursuant to standards in chapter 39, Florida Statutes, and corresponding rules; and a child care licensing complaint investigation to be conducted pursuant to licensure standards in section 402.305 and implementing rules. The child protective investigation was referred to the Manatee County Sheriff's Office (MCSO), the designated child protective investigator. The child care licensing complaint investigation was referred to Ms. Gonzalez, who assigned a child care licensing counselor. The joint investigation began on June 20, 2018. An on-site investigation was conducted at My First Steps that afternoon by the MCSO child protective investigators and the child care licensing counselor. The investigation centered on the video provided by A.M.'s mother. The owner/ director, Carina Piovera, was shown the video and interviewed, as was Ms. Pacheco, the teacher assigned to the classroom for one- and two-year-olds where the incident occurred. Ms. Gonzalez participated by telephone to translate the interview with Ms. Pacheco, who only spoke Spanish. Separate reports were prepared by the MCSO for the child protective investigation and by the child care licensing counselor assigned for the licensure complaint investigation. Both reports summarized the mother's complaint allegations, which were, in pertinent part5: The director (Carina) mistreated A.M. on [May 30, 2018]. There were 6 children in the classroom with the teacher. The teacher had one of the children with her doing an art project and the other 5 children were sitting at a table doing nothing. Then, the 5 children began taking off their shoes and standing in the chairs. The teacher never made the children sit down while she was with another student doing art. … Carina stormed in the room and hovered over the children. A.M. burst into tears and she grabbed him. Carina reached and grabbed a napkin to wipe A.M.'s nose twice very hard. Carina used enough force to cause A.M.'s head to go back and his feet lift off the floor. Carina took A.M.'s chair and shoved it under the table, pulled his arms up from under the table roughly and put his arms down. A.M. put his head down 5 The mother's Hotline complaint raised other issues addressed in the joint investigation, regarding her child being put in timeout, other children being put in timeout for long periods of time, and another child left to sleep in a chair. A longer video related to these other matters was not offered in evidence. These other complaint issues are omitted from the reports' summary of the mother's complaint because they are not germane to this case. The Department did not include charges in its Administrative Complaint for these other matters. and continued to cry. It is stated you could tell Carina was angry and was very forceful with A.M. The MCSO investigators' findings in the "Overall Safety Assessment" and "Summary/Findings Implications" sections of their report set forth their perception of the video. Included were findings that Ms. Piovera "forcefully" wiped A.M.'s nose and "caused the child's head to go back and his feet to come off the floor"; Ms. Piovera also "forcefully" put the child's arms on the table. The MCSO investigators included in the Overall Safety Assessment Ms. Piovera's statement to investigators that the video on the mother's phone was not accurate, so "it looks more rough than it actually was in real life." But, the report noted, Ms. Piovera stated (on June 20, 2018) that she did not have the original video "since [the incident] was almost one month ago." After June 20, 2018, the MCSO investigators checked with parents of other children at My First Steps and found no expressions of concern about their children's treatment. On July 16, 2018, they closed the child protective investigation under abuse and neglect standards in chapter 39 with a determination of "not substantiated." That is an intermediate determination, between "verified" and "no indicators." As described by Ms. Gonzalez from her experience in other investigations, "not substantiated" is used when the event actually happened, but it did not cause the level of harm required under chapter 39. Her description comports with the rule definition of the term.6 6 Florida Administrative Code Rule 65C-30.001(16) (December 2017) provides: "'Child Maltreatment Index' is a document that defines specific types of abuse, neglect, or abandonment; and guides decision making by staff at the [Hotline] and Child Protective Investigations regarding screening decisions and investigative findings. The 'Child Maltreatment Index,' CF Operating Procedure No. 175-04, October 2015, is incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-06454." The linked rule-document, at page 5, provides the following definitions: "'Verified' is used when a preponderance of the credible evidence results in a determination the specific harm or threat of harm was the result of abuse, abandonment, or neglect. 'Not substantiated' is used when there is credible evidence which does not meet the standard of being a preponderance to support that the specific harm was the result of abuse, abandonment, or neglect. 'No indicators' is used when there is no credible evidence to support that the specific harm was the result of abuse, abandonment or neglect." (Emphasis added). The Department was aware that the child protective investigation was closed with the intermediate "not substantiated" determination. The Department considered both the outcome of the child protective investigation and the findings made by the MCSO investigators in their report, which were consistent with the Department's perception of the video. The Department also considered the investigation report of its licensing counselor, who assessed the complaint in the context of the child care facility licensing standards. The counselor's report found non-compliance with the child discipline standards in section 2.8 of the Child Care Facility Licensure Handbook (Handbook), as well as two other standards. The Recommended Order set forth how the ALJ perceived the incident upon consideration of the testimony at the hearing in the underlying action and his perception of the video (as discounted by the ALJ's finding in paragraph 8 that the video was "a little fast," a matter relevant to the special circumstances defense discussed below): Around 10:21 a.m., … Ms. Piovera entered the toddler room to assist Ms. Pacheco in redirecting the children to a new activity, i.e., to sing and do art work, after efforts by Ms. Pacheco to have the children sit down and keep their shoes on were unsuccessful. Redirection is considered a form of discipline by the Department, but Ms. Piovera considers moving to a new task a routine action in caring for toddlers. Just before Ms. Piovera entered the room, A.M. and two other children were standing in their chairs and climbing onto the table. When A.M. saw Ms. Piovera enter the room, he immediately sat down in the chair. Ms. Piovera placed him in an upright position, adjusted his pants, and observed that his nose needed to be wiped and he had taken one shoe off. His nose had crusted mucous and the discharge was green. The child was crying at this point. The mother acknowledged that A.M. does not like having his nose wiped. Ms. Piovera needed two swipes with a tissue to clear A.M.'s nose. His feet lifted slightly when his nose was wiped, but this was because A.M. was trying to avoid having his nose cleaned. Ms. Piovera also put his shoe back on. Although A.M. began crying when she first touched him, no unusual force or pressure was used, and there were no marks or bruises on the child. Within a few seconds after his nose was cleaned, A.M. became calm, stopped crying, and placed his head on the table. The class continued with painting activities. (RO at 6-7). The video evidence is subject to differing interpretations by reasonable persons. While Petitioner in its Proposed Final Order invited the undersigned to adopt the findings in the Recommended Order describing the incident shown on the video as the findings herein, that invitation must be declined, as the undersigned would describe the incident as portrayed in the video in substantially different terms from the Recommended Order. For example, while the undersigned would agree that Ms. Piovera came into the classroom to help Ms. Pacheco, who could not keep the children sitting down with their shoes on (and out of their mouths), there is no sign in the video that Ms. Piovera attempted to redirect children from actively standing on chairs and chewing on shoes to actively engaging in appropriate activities such as art and singing. Instead, the video shows that both before and after Ms. Piovera was in the room, only one child was provided an art activity. None of the other five children who were being unruly were redirected to an art activity, singing, or any other activity. And the "class" did not continue with painting activities after Ms. Piovera left the room; only one child continued a painting activity, the same child engaged in the one-on-one painting project with the teacher before Ms. Piovera's entrance. For the remaining one and one-half minutes of the video after Ms. Piovera left the classroom, no new activity was started for the five other children, including A.M. All five children were subdued in the aftermath of Ms. Piovera. A.M., in particular, continued to cry for a while after Ms. Piovera left the room, kept his head down on the table, and appeared morose, in contrast to the happy, active child he appeared to be before his encounter with Ms. Piovera. The undersigned also would not describe Ms. Piovera's handling of A.M. the same as in the Recommended Order. Instead, the undersigned would agree with the Department's perceptions when viewing the video before issuing the Administrative Complaint. A reasonable interpretation of the video evidence is that rather than making physical contact with A.M. to constructively redirect him to an appropriate activity, Ms. Piovera imposed a physical consequence on A.M. for misbehaving by roughly and forcefully wiping/pinching his nose, twisting and pushing A.M. in his chair up to the table, and forcefully pulling his arms up from under the table and pushing them down to the table. Ms. Piovera forced A.M. into the position of sitting at the table and forced his arms on the table not to prepare him to start a new activity, but as punishment. Ms. Piovera did not offer A.M. or the other five children any new activity; she left the room after she was done positioning A.M. so Ms. Pacheco could continue her one-on-one painting session with the same one child (and Ms. Pacheco did so for the last one and one-half minutes of the video). This interpretation is supported by the summary of the on-site investigation in the licensing inspection report. In summarizing Ms. Pacheco's interview, the report noted Ms. Pacheco said that the five children were behaving improperly while she was attempting to conduct a painting activity with one child. She was asked why she did not attempt to get the children in her classroom under control and she explained that only Ms. Piovera could "correct the children when they are off task."7 7 Ms. Gonzalez, who translated the interview, recalled Ms. Pacheco stating that only Ms. Piovera could discipline the children. Ms. Gonzalez remembered that because she made a point of asking Ms. Pacheco what she meant by "discipline." Ms. Pacheco responded that, "well, redirection is what is in the policy." It was reasonable for the Department to consider Reasonable persons can differ—and have differed—regarding their perceptions of the video. The allegations of fact in the Administrative Complaint are substantially supported by a reasonable perception of the video evidence, albeit that the ALJ in the underlying action saw it differently. The Administrative Complaint allegations are further supported by the investigations and findings of the child protective investigators and the child care licensing counselor in their respective reports. This material was all available to and considered by the Department before issuing the Administrative Complaint. The testimony at the final hearing in this case elicited by Petitioner's counsel makes the point that the allegations are supported by a reasonable perception of the video. In questioning the Department's expert, Petitioner's counsel asked whether it was a reasonable interpretation of the video for the ALJ to find that when the child's feet lifted up and head went back with Ms. Piovera's second nose wipe, that was the child pulling back because he does not like his nose wiped. The witness responded, "I don't agree with that." Counsel then asked, "But it's one that's possible, isn't it?" The witness agreed, "Sure." (Tr. at 91). The issue here is not whether the ALJ's findings reflect one possible interpretation of the video. The issue is whether another reasonable interpretation of the video—that of the Department's witnesses at the time, supported by the investigations—provided a reasonable basis for the allegations in the Administrative Complaint. The undersigned finds that there was a reasonable basis in fact for the allegations in the Administrative Complaint. Petitioner argued that the Department should have given weight to Ms. Piovera's statement that the reason for the mother's complaint was that information from the investigation provided by Ms. Gonzalez, who was part of the group that assessed the video when deciding whether to issue the Administrative Complaint. Her information supported the group's perception from the video itself. Ms. Gonzalez also made contemporary notes during the interview, but the notes are fairly sketchy, as would stand to reason given her focus on actively translating for Ms. Pacheco. the mother owed her money. Petitioner also argued the Department should have considered the fact that even though the mother saw the incident on the camera feed, she nonetheless let the child remain at the facility for several more hours, until coming to pick up him at 2:15 p.m. Lastly, Petitioner pointed to the mother's delay in lodging the complaint. None of these issues affect what is shown on the video or what was found in the investigative reports. If the mother's testimony had been the sole or primary evidence of the incident, then the points raised by Petitioner would bear on her credibility. However, the basis for the complaint was what the mother observed on the camera feed. It is noteworthy that the Department was able to, and did, independently assess the video evidence and, as previously noted, did not include charges in the Administrative Complaint for some aspects of the mother's complaint. As for the charge stemming from the incident shown on the video in evidence, however, Petitioner's points do not undermine the reasonable basis in fact for the allegations. Findings Related to Special Circumstances Defense Ms. Piovera was not forthright regarding the availability of the actual video footage recorded on her security system. She repeatedly suggested that the original video footage would present a different, slower scene in which she would not appear to be aggressive and rough with A.M., to plant the seed of doubt regarding the accuracy of the video provided by the mother, while not ever producing the original video footage so her theory could be tested. In Ms. Piovera's interview with the MCSO investigators, she told them that the video obtained from the complaining mother was not accurate, making her appear to be rougher than she actually was in dealing with A.M. But, she said, the original video was no longer available, because it had been nearly one month since the May 30, 2020, incident. When Ms. Piovera said that—on June 20, 2018—21 days had passed since the incident. The pre-hearing documents in the underlying action officially recognized in this case at the Department's request show that Ms. Piovera made the same claim of inaccuracy when deposed in the underlying action, but suggested that she could obtain the original video from the security system company. That triggered an elaborate effort by the Department to obtain the original video in discovery, strung along by Petitioner's promises through her attorney that the video would be forthcoming, followed by changing excuses as to why the video was not yet forthcoming but would be soon, and changing stories as to when and how it would be provided. The Department's motion to compel in early February 2019 laid out the efforts to that point to obtain the video. See First Amended Motion to Compel at 2, ¶ 9, filed Feb. 8, 2019. The motion to compel was granted, but still no video was produced; instead, there were more promises and changing stories as to when and how the video would be provided. Ultimately, the Department moved for sanctions, which was granted by Order issued March 18, 2019 (Sanction Order). The Sanction Order recited that the Department had a copy of the surveillance footage from a third party (the mother), but that My First Steps "contends the copy does not accurately depict the incident in question because the video replay is faster than the real time. As a sanction, the Department requests that [My First Steps] be prevented from objecting to the accuracy of the Department's copy." The ALJ agreed, and imposed the following sanction: "[My First Steps] will not be allowed to object to the accuracy or admissibility of the Department's copy of the facility surveillance video for May 30, 2018." My First Steps moved for rehearing of the Sanction Order. The Department's response chronicled the progression of assurances provided by Ms. Piovera, through counsel, none of which were met, and ultimately, as before, the story changed. The ALJ denied the motion for rehearing. Again, at the hearing in the underlying action, counsel for My First Steps tried to revisit the Sanction Order, offering case law suggesting harsh sanctions should not be imposed against a party for the counsel's actions. The ALJ stated that he did not think counsel was stonewalling, but he believed that Ms. Piovera was stonewalling. The ALJ denied this second request for reconsideration of the Sanction Order. (underlying action Tr. at 29-30). Petitioner essentially concedes that the discovery fiasco is a special circumstance, but argues it should only render part of the claimed fees unjust. Petitioner contends that its agreement to withdraw those items should end the issue of special circumstances. Petitioner's view of the limited scope and impact of these special circumstances is not supported by the record. The issue of the original video's availability was more than just a discovery matter. Instead, Ms. Piovera invoked her claim that the mother's copy of the video was inaccurate, making her appear rougher with the child than she was, when she was investigated on June 20, 2018. The investigators found her statement significant enough to include it in their Overall Safety Assessment, after they described the video showing that Ms. Piovera was rough and forceful with the child. The investigators also made a point of recounting Ms. Piovera's representation that the original video was no longer available by that point, three weeks after the incident. A fair inference from that recitation is that the investigators asked Ms. Piovera for the original video after she said the copy they were reviewing was not accurate. The issue of the original video's availability also had an impact on the outcome of the underlying action. Despite the Sanction Order, at the final hearing Ms. Piovera was permitted to testify over objection—for the stated purpose of allowing My First Steps to make a record—that the video in evidence was not accurate, appearing faster than real life. She painted the picture that the "inaccurate" video made her look like she rushed into the room and was aggressive and rough. Again, notwithstanding the Sanction Order and the stated purpose for allowing this testimony, the ALJ ended up accepting Ms. Piovera's testimony, finding that the video in evidence was "a little fast." (RO at 5, ¶ 8). Implicitly, the ALJ accepted the implications: that Ms. Piovera appeared rough when she really was not; Ms. Piovera appeared to rush in when she really did not move that fast; and Ms. Piovera's actions appeared aggressive and harsh when they really were not. A critical point that must be made here is that Ms. Piovera's own testimony at the hearing in the underlying action established that, contrary to what she told the investigators on June 20, 2018, she could have obtained the original video, and she knew she could have obtained the original video, within 30 days of the recording. Ms. Piovera's clear testimony on this point was as follows: "[W]hen I purchased the equipment, they told me they only keep it for 30 days because the memory is not that big. So after 30 days, everything is going to erase." (underlying action Tr. at 33) (emphasis added). Ms. Piovera thus admitted she knew on June 20, 2018, that she had nine more days to obtain the original video before it would be erased. Yet she told the investigators it was already too late to obtain the original video.8 Ms. Piovera added at the hearing in the underlying action, for good measure, a new excuse for not trying to obtain the original video, stating that "for the privacy and one of the main reasons why I didn't turn this video [sic] is because the parents were not okay with me showing their children in the video. That was one of the main reasons why. I had a letter for them to sign and they refused." (underlying action Tr. at 32). That would not explain why she told investigators the original video was no longer available, nor why she would hesitate to provide an original video to support her claim that the mother's copy of the video, which showed the children, was inaccurate. These special circumstances are far more than just a discovery matter. Ms. Piovera misrepresented to the MCSO child protective investigators that the original video was no longer available, and used her misrepresentation as 8 After admitting that she has known since she purchased the equipment, and, therefore, knew on June 20, 2018, that she could still obtain the original video, Ms. Piovera claimed at the hearing in the underlying action that she actually wanted to pull up the original video footage on her equipment right then and there, during the investigation, to show the MCSO investigators, but they told her not to, because the video copy showed no evidence of abuse. That claim is not credible; it does not square with her contrary statement that the investigators made a point of including in their report in the Overall Safety Assessment. a way to undermine the video provided by the mother without actually proving her claim that the mother's video was inaccurate, distorting her actions and making her look rougher than she said she actually was. Ms. Piovera employed the same strategy in the underlying action. That this was a strategic plan is evident from her attorney's billing records, which include the following entry four weeks before the hearing: "Notify Carina of need to demonstrate that phone video of incident is not accurate." See Pet. Ex. 5, billing entry for February 21, 2019. The strategy to undermine the perceived reliability of the video in evidence is both a concession by Petitioner that the video provides a reasonable basis for the allegations and charge of rough and harsh handling of A.M. in the Administrative Complaint, and a reason for finding special circumstances making the award of attorney's fees and costs unjust. In short, Ms. Piovera's inconsistent and false statements regarding the original video allowed her to play both sides of the issue, injecting doubt as to the reliability of the mother's video without having to actually prove it.9 Ms. Piovera could have obtained the original video had she really believed it would have helped her respond to the investigation. Instead, she lied and told the investigators she could no longer obtain it. That she succeeded in injecting the same doubt in the administrative hearing, despite the Sanction Order, requires a finding that these special circumstances went to the heart of the issue, and may well have tainted the outcome of the underlying action. Under these unique circumstances, an award of attorney's fees and costs would be unjust. 9 The undersigned does not suggest that counsel for Petitioner sponsored or was aware of his client's misrepresentations. Ms. Piovera's testimony at the final hearing in the underlying action that she knew since she purchased the surveillance equipment that she could obtain the original video within 30 days of the recording appeared to be the first time this statement was made. Conceivably, the statement could have been overlooked even after it slipped out.
