The Issue Whether the Department of Health and Rehabilitative Services properly assessed an administrative fine in the amount of $150.00 on Lourdes Guanlao d/b/a Children's Paradise for violations of Sections 402.305(4) and 402.305(12), Florida Statutes, and Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code.
Findings Of Fact The Department issued a Child Day Care Facility license to Lourdes Guanlao to operate a facility known as Children's Paradise on October 9, 1991. From 1991 to 1994 Petitioner conducted routine facility inspections at Children's Paradise. These inspections included a determination whether the facility was operating with appropriate staff-to-child ratios. On April 1, 1992, Sandy Looney, Respondent's Senior Children's and Families' Counselor, conducted an inspection of Children's Paradise. When Ms. Looney arrived at the facility, Jeane Weiss was the only staff member present. There were seven children present in the center. Two children were under the age of one year and two children were between one and two years old. There should have been two staff members at the facility for the grouping of children present. Within ten minutes of Ms. Looney's arrival, Ms. Guanlao, arrived at the facility thereby correcting the staffing violation. Ms. Guanlao signed the inspection checklist. Ms. Looney discussed the staffing violation with Mrs. Guanlao and left a copy of the checklist with her. On July 27, 1993, Ms. Looney conducted an inspection of Children's Paradise. There were two staff members present at the facility, Ms. Weiss and Ms. Tan. There were sixteen children present in the center. Three children were under the age of one year, six children were between one and two years old. Three staff members were required for the grouping of children present. Ms. Weiss signed the inspection checklist. Ms. Looney left the checklist with staff. Before Ms. Looney left the premises, a staff member arrived for work thereby correcting the staffing violation. On August 17, 1994, Ms. Looney conducted a re-licensure inspection of Children's Paradise. There were two staff members present at the center, Ms. Weiss and Ms. Guanlao. There were twenty-one children present in the center. Seven were under the age of two. Three staff members were required if the children were separated in groups and four staff members were required if the children were all together. Ms. Weiss signed the inspection checklist. Mrs. Looney discussed the violation with Mrs. Guanlao who advised there was no substitute or other staff member available to call to work. Correction of the staffing violation was due on August 18, 1994. On August 18, 1994, Ms. Looney returned to Children's Paradise to determine if Ms. Guanlao had corrected the staffing violation. At that time there were eighteen children present. Six children were under the age of two. The same two staff members were present, Ms. Weiss and Ms. Guanlao. Mrs. Guanlao called a ten year old child to assist and again indicated that there was no adult available to call. Each time that Ms. Looney inspected Respondent's facility, she actually counted the number of children present and asked staff to verify their age. Evidence to the contrary is not persuasive. On August 29, 1994, Petitioner issued an Administrative Complaint imposing a fine in the amount of $75.00 for the August 17, 1994, staffing violation which Respondent had not corrected at the time of reinspection on August 18, 1994. This complaint properly advised Respondent of her right to a proceeding pursuant to Section 120.57(1), Florida Statutes. By letter dated September 13, 1994, Ms. Looney advised Ms. Guanlao that if she disputed the imposition of the fine, she could request an administrative hearing. The letter further stated that if Ms. Guanlao did not dispute the fine, she could pay it by mailing a check or money order. Ms. Guanlao tendered check number 1839 dated September 22, 1994, in the amount of $75.00 with "Adm. Fine" noted thereon. Ms. Looney transmitted this check to the fiscal office for deposit on or about October 7, 1995. There is no persuasive evidence that Ms. Looney told Ms. Guanlao she had to pay the administrative fine or risk losing her license. Gerald Stephens, Protective Investigator for Petitioner went to Children's Paradise on November 18, 1994. The purpose of his visit was associated with an investigation unrelated to this proceeding. When Mr. Stephens arrived at the facility, Ms. Guanlao was the only staff member present. He observed ten children in the center. The youngest child present at the center was eighteen months old. This number of children required at least two staff members to be present at the facility. Mr. Stephens interviewed one of Ms. Guanlao's staff members on the morning of November 18, 1994. There is no persuasive evidence that Mr. Stephens prevented the staff member from showing up for work that morning by telling her he was going to shut the facility down. Seven witnesses testified that they were volunteers at the center and had agreed to act as substitute staff on an as needed basis. Only two of these people had been properly screened and trained to work in a day care center or with children. One of these two volunteers did not receive her certification to work in a day care facility until October 3, 1994. Some of the volunteers had other full time jobs. Consequently, the times they were available to help Ms. Guanlao was limited. There is no evidence that Ms. Guanlao called any of these people to substitute on April 1, 1992, July 27, 1993, August 17, 1994, August 18, 1994 or November 18, 1994. Ms. Guanlao attended a training course that Ms. Looney conducted prior to October 9, 1991. One purpose of the course was to familiarize participants with the rules regulating child day care centers. During the training Ms. Looney provided Ms. Guanlao with written material including the Child Care Standards contained in Rule 10M-12, Florida Administrative Code. This rule sets forth staffing requirements and child discipline standards. Ms. Looney and Ms. Guanlao discussed subsequent changes in the rules related to staffing requirements. Ms. Looney also explained to Ms. Guanlao that the staffing requirements applied at all times the children were in the center regardless of the activity that was taking place. In other words, the staff-to- child ratios applied even if the children were napping. On August 19, 1994 Ms. Looney received a complaint involving the day care center on an unrelated licensing issue. As a result of the subsequent investigation, Ms. Looney was at the facility on August 24, 1994. During that visit, Ms. Guanlao admitted that she sometimes slapped the children on the hands as punishment.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That Petitioner Department of Health and Rehabilitative Services enter a Final Order imposing an administrative fine on Respondent Lourdes Guanlao d/b/a Children's Paradise in the amount of $150 for violating Rules 10M-12.002(5) and 10M-12.013(1)(c), Florida Administrative Code. DONE and ENTERED this 16th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1996. COPIES FURNISHED: Frances S. Childers, Esquire District 3 Legal Office Department of Health and Rehabilitative Services 1000 NE 16th Avenue, Box 3 Gainesville, Florida 32601 Michael M. Naughton, Esquire 3840-4 Williamsburg Park Boulevard Jacksonville, Florida 32257 Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services Building 7, Suite 204-X 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner's license to operate a family day care home should be denied based upon the reasons asserted in the denial letter.
Findings Of Fact The Petitioner, until denial of licensure, owned and operated a licensed day care facility, licensed under Chapter 402, Florida Statutes. The Respondent is an agency of the State of Florida charged, in pertinent part, with administering and regulating the statutory and regulatory provisions governing entry into and licensure of the business of operating day care facilities and with regulating the practice of day care facilities and operators such as the Petitioner. Witness Tamika McConner is the mother of a child who was placed by Ms. McConner in the Petitioner's day care facility under Petitioner's care at the time pertinent hereto. Ms. McConner maintains that the Petitioner struck her child with a sandal while they were in the Petitioner's car or van on one occasion and that the Petitioner did not see to it that the child ate properly or at the proper times while in her facility. The Petitioner denies these occurrences or indications of improper child care. The evidence show that there is a hostile relationship between Ms. McConner and the Petitioner, apparently stemming from a check written by Ms. McConner for services to the Petitioner which was returned for insufficient funds and concerning which they apparently had a dispute. Under these circumstances, it is not found that Ms. McConner's testimony is preponderant evidence to establish that the occurrences she related actually happened. Moreover, as near as can be gleaned from the paucity of concise pleadings of the agency's allegations, this incident or incidents was not the subject of the report which led to license denial. On or shortly before October 3, 1996, an abuse report was received by the above-named agency concerning a child T.S. T.S. was enrolled in the care of the Petitioner in her day care center. An incident occurred that day when the Petitioner was taking the children in her charge to the Regency Mall for shopping. While at the mall, when the Petitioner was in a store shopping with the children, the child T.S. got to close to her and almost knocked something over on a shelf in the store. The Petitioner maintained that the child was so close to her that she contacted him when she turned around and it caused her to lose her balance and start to fall with the result that she reached out, accidentally knocking the child to the floor. Instead, however, witness Quinones testified and at least one witness in the store verified to the Department's investigator (see Respondent's exhibit 5 in evidence and the testimony of Mr. Gore) that the Petitioner struck the child in anger and knocked him to the floor. Ms. Quinones testified that the child didn't cry but was visibly shaken and Ms. Quinones was concerned that the Petitioner appeared to lose control of her temper on that occasion. Witness David Gore of the Department of Children and Family Services is in the business of inspecting and licensing child care facilities and has owned and operated a child care facility himself. He inspected the Petitioner's facility and found deficiency problems involving immunization records, some sanitary conditions, inoperative smoke detectors and hazardous household products left in reach of children, an incomplete first aid kit and paint and lumber left in the play area. The paint and lumber was there temporarily for the purpose of building a swing set for the children. The deficiencies were promptly corrected by the Petitioner. These deficiencies, however, were not the basis for the notice of licensure denial to the Petitioner however. Witness Roxanne Jordan testified on behalf of the Petitioner. The Petitioner cares for her child or did before the licensure problem arose and said she never had a problem with the Petitioner's care for her child nor did she observe any deficiencies or improprieties in the care of other children she observed at the Petitioner's facility. Ms. Jordan's describes the Petitioner as an excellent caregiver for children. This testimony is corroborated by substantial number of "testimonial letters" from people who have experience with her child care activities, in evidence as "corroborative hearsay." These served to establish that indeed the Petitioner is a caring, compassionate keeper of children in the operation of her day care facility and in the course of her duties baby-sitting for friends' children before she was licensed as a day care facility operator. The Petitioner is in earnest about pursuing the profession of child care and becoming re-licensed to do that. The Petitioner has demonstrated a long-standing interest and aptitude for caring for children. Indeed, in the last two years, she has earned approximately 55 hours of educational training at Florida Community College in Jacksonville in courses generally applicable to the profession of child care. The direct, competent evidence of record and the corroborative hearsay evidence in the form of testimonial letters, from people who have experience with her child care skills and her personality, establish that she has been, in most ways, a competent child care facility operator and caregiver for children and has the capability of becoming more so. In order to justify her re- licensure, however, she must demonstrate a willingness to and a capability of controlling her anger and enhancing her positive child discipline skills.
Recommendation Accordingly, in consideration of the greater weight of the evidence, supportive of the above findings of fact and these conclusions of law, it is
The Issue Did Respondent, Department of Children and Families (Department), correctly deny the application of Petitioner, Laura's Learning and Enrichment Center (Laura's Learning), for licensure renewal for failure to meet the minimum licensing standards for child care facilities?
Findings Of Fact The Legislature has charged the Department with regulating and licensing child care facilities. Laura Smith owns and operates Laura's Learning in Lake Wales, Florida. Since 2009, the Department has licensed Laura's Learning as a child care facility. The charges involved in this proceeding are the first time that the Department has acted against Laura's Learning's license. Ms. Smith submitted an amended application to renew her license on November 21, 2019. The Department proposes to deny renewal of the license because Ms. Smith failed, the Department asserts, to protect her adopted son, B.S., from bizarre punishment and resulting physical and emotional harm. It also alleges that Ms. Smith failed to provide a required update to her renewal application. In its case number 2019-197752-01, the Department made a verified finding of abuse by Ms. Smith of B.S., her adopted son, by failing to protect him from bizarre punishment and physical injury. Because of this, the Department revoked Ms. Smith's license to operate a family foster home. However, Ms. Smith did not oppose revocation and wished to surrender her license. Ms. Smith did not amend her application to advise the Department that it had revoked her foster home license. Ms. Nancy Ebrahimi learned of the verified finding and license revocation during her routine review of Department registries during the license renewal process. August 7, 2019, after a shelter hearing in which Ms. Smith said that she did not want B.S. in her home any longer, the court ordered that B.S. be placed in the shelter custody of the Department. An August 8, 2019, Shelter Order at Review continued this placement. On September 18, 2019, the court granted the Department's Petition for Termination of Parental Rights of B.S. This decision included consideration of the fact that Ms. Smith signed an Affidavit and Acknowledgment of Surrender, Consent to Termination of Parental Rights, and Waiver of Notice form before the Department filed its Termination of Parental Rights Petition. Ms. Smith's relationship with B.S. began when she served as his foster parent. She adopted him when he was about seven (born March 11, 2005). B.S. lived in Ms. Smith's home in Lake Wales, Florida. He occasionally helped with chores, such as yardwork, at Laura's Learning. He was also responsible for chores at home. Ms. Smith had other children, including an adult biological daughter, Jayda Miles, who, at the times involved here, lived in Cocoa Beach, Florida, and visited Ms. Smith's home regularly, often with her husband, Antonio Miles. Mr. and Ms. Miles lived on Patrick Air Force Base because of his service in the Air Force. Another adult sibling, Chaundi Parham, lived at Ms. Smith's home and worked sometimes at Laura's Learning. Young twins who were Ms. Smith's foster children lived in the home with a third foster child. On June 17, 2019, B.S. was doing yardwork at Laura's Learning. Ms. Parham was overseeing him. B.S. could not complete mowing because the mower was flooding. Ms. Parham directed him to sit on a bench and wait for Ms. Smith to arrive. B.S. removed a bag of Cheetos from the back pack of the twins, who were also at Laura's Learning. Ms. Parham caught him eating the Cheetos in the bathroom. She scolded him and called Ms. Smith. Ms. Parham was unable to reach Ms. Smith, so she called her older sister, Ms. Miles. Ms. Parham then told B.S. to sit on a bench to await Ms. Smith. B.S. jumped the fence surrounding the child care center and ran away. B.S. was 14 years old at the time. Ms. Parham reported B.S. as a runaway. During the preceding year, B.S. had started regularly having trouble at school. He frequently got in fights. Lake Wales police officer, Edgar Claros, responded to the report of B.S. running away. On June 18, 2019, Ms. Smith reported to the police that B.S. had returned home. She also reported that he said he wanted to live on the streets and left home again. B.S. had run away two or three times before. The Department assigned Ms. McConnell-Bailey to investigate. On June 18, 2021, Ms. McConnell-Bailey visited Ms. Smith to question her about the runaway report. She also questioned Ms. Smith about reports from an unidentified source, possibly a caller to the Department's abuse line, about maltreatment of B.S. including use of a "taser1", striking him with various 1 "Taser" is a brand name for a stun gun and likely not the brand involved here. The device was a stun gun that required contact of its electrode prongs with the subject's skin, called "drive tasing." There is no evidence that any of the tasing involved darts. "Taser" and "tase" are used in this Order because that is the description the witnesses used. objects including a wooden spoon, and making him sleep in the garage and laundry room. Ms. Smith was visibly angry. She denied the allegations and said B.S. was not going to ruin her business and take everything she had worked so hard for. She said B.S. was lying and that she had no idea where he was, except that some people told her he was somewhere in the neighborhood of a Publix. Ms. Smith did not express concern for B.S.'s well-being. She did tell Ms. McConnell-Bailey that she had removed all pictures of B.S. from displays of family photographs because they upset her. Ms. Smith began crying during the interview. She said the situation upset her and was causing her to get sick. She said she felt she was too old for the troubles B.S. caused and she did not want to deal with him anymore. On June 21, 2019, Ms. Smith called Detective James Lewis and advised him she had heard that B.S. was near the area of G. Street and Lincoln Avenue. Ms. Smith told Detective Lewis that she hoped the officers did not find B.S. and that he keeps running. Ms. Smith also said B.S. had been lying about her family, specifically her daughter, Jayda, falsely claiming abuse. And she said she wanted to file for an injunction against him. Ms. Smith did not express or display any concern for B.S. Ms. Smith, however, told Detective Lewis that she was going to the area where B.S. might be, but that he would run from her. Detective Lewis passed the information about B.S.'s location on to Officer Eric Ricks, who located B.S. in the area. Officer Ricks located B.S., picked him up, and spoke with him. Officer Ricks asked B.S. why he ran away and did not want to return home. B.S. told Officer Ricks that his sister, Ms. Miles, tased him and pepper sprayed him on June 16 in the presence of Ms. Smith, Mr. Miles, and Ms. Parham. B.S. indicated that it was because he had tried to steal something to eat. B.S. was apprehensive about returning to Ms. Smith's home. B.S. appeared to be on the verge of tears. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Officer Ricks transported B.S. to the police station where Detective Lewis assumed responsibility for the investigation. Detective Lewis interviewed B.S. with Child Protective Investigator Ruth McConnell-Bailey, for forty-five minutes to an hour, the night of June 21, 2019. B.S. told Detective Lewis that Ms. Miles had repeatedly tased him on his left chest area and on his upper left arm and sprayed him with pepper spray on June 16, 2019. He said this was because he had been caught preparing to steal a honeybun. This, he said, was the reason he ran away and did not want to return. B.S. did not say anything about being tased earlier in the year, around Memorial Day, on the patio. Detective Lewis inspected B.S.'s chest and left arm. He found injuries and scabs that he thought were consistent with the injuries made by a taser. The pain from tasing that B.S. described was consistent with the pain Detective Lewis experienced when he was tased during training. Detective Lewis did not measure the distance between scabs or other injuries to determine if they corresponded with the typical separation of the prongs of a taser. B.S. also told Detective Lewis that he was wearing snowman pajamas the night of June 16. After the interview, Detective Lewis and Ms. McConnell-Bailey transported B.S. to the home of Cheryl Jennings who had agreed to provide him lodging. B.S. was happy to be taken there instead of Ms. Smith's home. B.S. said that he felt unsafe at Ms. Smith's home. Detective Lewis and Ms. McConnell-Bailey then went to Ms. Smith's home to obtain clothes for B.S. and to obtain the snowman pajamas. The pajamas had been washed, dried, and folded. Detective Lewis examined the pajamas. He identified one small burn hole on the chest area of the pajamas. He thought the hole was consistent with use of a taser with its prongs placed directly on the person being tased. Although B.S. claimed he had been repeatedly tased on his left chest and left arm, the pajamas had only one possible burn hole. A few days later, Detective Lewis interviewed Ms. Miles. She denied the claims of B.S. She also allowed Detective Lewis to search her car. He did not find a taser or pepper spray. On June 25, 2019, Thia Lomax, Children's Home Society Children's Advocacy Center Case Coordinator, Child Protection Team, interviewed B.S. Ms. Lomax is a trained and experienced forensic interviewer. Ms. Lomax noticed marks on B.S.'s neck. He told her they were from a recent fight. Ms. Lomax interviewed B.S. for about an hour. The record contains a video recording of the interview. The interview is neutral and undirected. Ms. Lomax does not suggest or imply responses by her questions or body language. However, Ms. Lomax also does not test or challenge B.S.'s statements. B.S. basically made the same report about events the night of June 16 as he made earlier to Detective Lewis. He also made a new claim that Ms. Miles tased him on the patio earlier in the year, around Memorial Day, in the presence of Ms. Smith and Ms. Parham. His description did not identify a number of tasings or how long the experience lasted. B.S. also made claims about being struck by a broom and a spoon and made to "work like a slave." On August 6, 2020, the parties deposed B.S. A transcript of the deposition is also part of the record. B.S. did not testify at the hearing. B.S.'s deposition testimony differed from the interviews. B.S. demonstrated confusion and changed the details of his reports. The evidence about the initial events of the night of Sunday, June 16, 2019, is consistent. Mr. and Ms. Miles were spending that night at Ms. Smith's home. On June 16 Ms. Smith took B.S. to Walmart sometime after midnight to buy a Sprite. Antonio Miles was at the Walmart, having arrived separately. He observed B.S. preparing to steal a honey bun. When B.S. saw Mr. Miles watching him, he abandoned his plan to steal a honey bun. Afterwards B.S. returned home with Ms. Smith and went to bed, wearing pajamas with snowmen on them. When Mr. Miles returned to the home, he told Ms. Smith about the honey bun. Ms. Smith called B.S. into the family room. From this point forward, the evidence and the testimony of the witnesses differs significantly. According to Ms. Smith, Ms. Miles, and Mr. Miles, Ms. Smith called B.S. into the family room and asked him about the honey bun incident. He told her he was just looking at the pastry. They further testified that Ms. Smith talked to B.S. about "making bad choices" and sent him back to bed. Ms. Smith, Ms. Miles, Ms. Parham, and Mr. Miles all testified that Ms. Parham was not present because she was with friends in Orlando. Mr. Miles, Ms. Miles, and Ms. Smith are adamant that Ms. Miles did not tase or pepper spray B.S. They also agree that Ms. Parham was not present during the conversation with B.S. about the honey bun because she was in Orlando. And they agree he was not made to sleep in the laundry room. According to B.S., when Ms. Smith called him from his room, all the adults, including Ms. Parham, were present in the family room. He says that when he denied preparing to steal the honey bun, Ms. Smith stated, "No you are lying." In his interviews, B.S. stated that Ms. Miles went to her car and returned with a pink can of pepper spray and a pink "taser" and began tasing him. He said that Ms. Miles tased him five or six times on his upper left arm and the left side of his chest. The taser got tangled in his pajamas he said. Then Ms. Miles began spraying him with pepper spray. According to B.S.'s statements, the adults sent him outside to wash the pepper spray from his face. He then went to bed in the laundry room. He said that Ms. Smith did not intervene. In deposition, subject to cross examination, B.S. amplified and expanded his claims to the point of incredulity. For instance, in his interviews he said Ms. Miles had tased him five or six times the night of June 16. In his deposition testimony, B.S. testified "they were tasing me all over the house." (R. Ex. K, p. 52). He also testified that the tasing went on for two or three hours. He volunteered that Ms. Miles tased him 50 times. He also said that it could have been 100 times. He said his pajamas had 50, maybe 100 holes from the tasing. (R. Ex. K, p. 52). These claims differ significantly from those made in his interviews. Detective Lewis found only one hole that he thought could have been caused by a taser. According to B.S., Ms. Smith did not attempt to intervene to stop Ms. Miles. She also did not report the alleged incident to law enforcement. Ms. Miles, Mr. Miles, and Ms. Smith all firmly denied the allegations of tasing and pepper spraying the night of June 16. During the videotaped interview, B.S. first claimed that Ms. Miles tased him three or four times when on the patio Memorial Day. He did not mention this in his earlier interviews. His deposition testimony about tasing on the patio was very different from his interview statements. He testified that Ms. Miles tased his entire chest and stomach up to his neck Memorial Day. He said Ms. Smith was on the patio and Ms. Parham was sitting on a couch inside looking out. At first, he said Ms. Miles tased him 20 times. He went on to say it was more than 20, maybe 50 or 100 times. He said the Memorial Day tasing lasted from about 6:00 p.m. to 11:00 p.m. He also testified that Ms. Smith and Ms. Miles stayed on the patio the entire time. Ms. Parham, he said, stayed sitting on the couch watching the entire time. Nobody took a break, went to the restroom, or got something to drink, according to B.S.'s testimony. Ms. Miles, Ms. Smith, and Ms. Parham all credibly deny this account. In addition, the claims are implausible because of the varying numbers of tasings claimed and the length of time B.S. said the tasings went on, as well as nobody leaving the patio for five hours. In the course of the interviews and his deposition, B.S. made claims of being hit by a broom, hit by a spoon, made to sleep in the garage, and made to sleep in the laundry room. Ms. Smith denied these allegations. They are not corroborated. The evidence to support these claims is not clear and convincing. B.S.'s shifting version of events, the firm, convincing denials of all other witnesses, and the inconsistency of only one burn on the pajamas from four to six tasings, let alone 50 to 100, keep the evidence of the tasing and pepper spraying from being clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent, Department of Children and Families, enter a Final Order granting the license renewal application of Petitioner, Laura's Learning and Enrichment Center. DONE AND ENTERED this 19th day of April, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2021. COPIES FURNISHED: Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Hannah George, Esquire Law Firm of Gil Colon, Jr. 325 East Davidson Street Bartow, Florida 33830 Raquel Ramos, Esquire Department of Children and Families 1055 U.S. Highway 17 North Bartow, Florida 33830 Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (1) whether Respondent misrepresented or fraudulently provided information to Petitioner regarding compliance of its child care facility with the annual physical examination and annual vehicle inspection requirements in Florida Administrative Code Rule 65C- 22.001(6)(a) and (c), in violation of section 402.319(1)(a), Florida Statutes, and Child Care Facility Standard No. 63, incorporated by reference into rule 65C-22.010(1)(d)1.; and (2) if Respondent committed the alleged violations, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for licensing, inspecting, and monitoring child care facilities pursuant to chapter 402, Florida Statutes. Respondent is a child care facility licensed by Petitioner, operating under License No. C11MD1476. Respondent's facility is located at 968 Southwest 82nd Avenue, Miami, Florida. Soraya Sanabria and Lyan Barrus are the Respondent's owners, and Sanabria is its Director. At the time of the alleged conduct giving rise to this proceeding, Respondent was designated a Gold Seal Quality Care provider pursuant to section 402.281(1)(b) and was participating in the Gold Seal Quality Care program. Events Giving Rise to this Proceeding License Renewal Process Pursuant to section 402.308(1), Respondent applied for the annual renewal of its child care facility license in mid- to late 2013. On November 20, 2013, Pauline Kinsey, Family Service Counselor, conducted a license renewal inspection of Respondent's facility. During the inspection, Kinsey identified a few minor noncompliance issues, which Respondent expeditiously addressed and are not at issue in this proceeding. As part of the annual license renewal application review process, Petitioner's auditors carefully review each application to ensure compliance with the statutes and rules governing child care facility licensure. Gloria Johnson, an auditor with Petitioner's child care facility regulation program, reviewed Respondent's 2013 license renewal application.5/ The Vehicle Inspection and Health Examination Forms In the course of her review of Respondent's 2013 application, Johnson discovered that Respondent had submitted a vehicle inspection form for its facility's child transportation vehicle dated June 14, 2011, that previously had been submitted as part of Respondent's 2011 license renewal application. Johnson notified Kinsey, who contacted Sanabria on December 17, 2013. Kinsey requested that Respondent submit a current vehicle inspection form for inclusion in its 2013 license renewal application. That same day, Sanabria faxed a vehicle inspection form, dated June 14, 2013, to Petitioner. Johnson reviewed this vehicle inspection form and determined that it was a copy of the June 14, 2011, form that had been altered. Specifically, the date in the top left space on the form had been altered by writing a "3" over the last "1" in "2011." In every other respect——including handwriting, vehicle mileage, name of inspector and business (Goodyear),6/ and date of inspection written in the lower right-hand corner——the two forms were identical. This spurred Johnson to take a closer look at Respondent's facility licensing files. In doing so, she discovered that the June 14, 2011, vehicle inspection form also had been submitted to Petitioner as part of Respondent's 2012 license renewal application.7/ Johnson notified Kinsey that the vehicle inspection form Respondent submitted on December 17, 2013, was an altered version of the form dated June 14, 2011. Kinsey immediately contacted Respondent regarding the altered form. On December 18, 2013, Respondent submitted a vehicle inspection form indicating that the vehicle had been inspected at Tires Plus that same day. Petitioner refused to accept the December 18, 2013, form. Kinsey informed Respondent that Petitioner had determined that the vehicle inspection form Respondent had submitted on December 17, 2013, was altered, so the matter was being referred to Petitioner's legal department to determine appropriate action. In the course of reviewing Respondent's license renewal application files, Johnson also discovered that a "Health Examination" form that Respondent had submitted in its 2012 license renewal application8/ also was altered. Respondent submitted a copy of the Health Examination form dated "6/10/2011" as part of its 2011 application, and then again submitted the same form in its 2012 application; however, the date on the form submitted in the 2012 application had been changed from "6/10/2011" to "6/10/2012" by whiting out the last "1" in "2011" and replacing it with a "2." In every other respect, including handwriting and other marks, the forms were identical.9/ Complaint Inspection and Administrative Complaints As a result of Johnson's discovery of the altered vehicle inspection and health examination forms in Respondent's application files, Kinsey conducted a complaint inspection of Respondent's facility on December 20, 2013. At that time, Petitioner issued an Administrative Complaint citing Respondent for violating section 402.319(1)(a), rules 65C-22.001(11) and 65C-22.001(6)(c), and Petitioner's Child Care Facility Standard No. 63, by having misrepresented information and fraudulently provided information to Petitioner related to Respondent's child care facility. On January 13, 2014, Respondent filed a request for administrative hearing challenging the Administrative Complaint. Attached to the request for hearing was a vehicle inspection form dated June 14, 2013. The information on the form stated that the vehicle had been inspected on that date by Francisco Perez, a mechanic employed at Albert of Miami. This document had not previously been submitted to Petitioner and was not part of Respondent's 2013 license renewal application. On February 18, 2014, Petitioner issued an Amended Administrative Complaint, alleging in greater detail the facts giving rise to its charges that Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility. The Amended Administrative Complaint charged Respondent with the same statutory and rule violations as had been charged in the Administrative Complaint, and imposed the same penalties. Respondent's Defenses At the final hearing, Barrus and Sanabria testified that Respondent inadvertently had submitted a copy of the June 14, 2011, vehicle inspection form in its 2013 license renewal application. When contacted by Kinsey, Sanabria had accidentally faxed a draft copy of the vehicle inspection form with the date changed to June 14, 2013. Barrus and Sanabria testified that this draft had been prepared for the purpose of demonstrating to the mechanic how to complete the form. They claimed that Perez did, in fact, inspect the vehicle on June 14, 2013, as evidenced by the vehicle inspection form showing his name that was submitted as an exhibit to the request for administrative hearing filed on January 13, 2014.10/ They claimed that the vehicle actually had been inspected twice in 2013, so that Respondent was in compliance with the rule requirement regarding annual vehicle inspection.11/ Barrus testified that the June 14, 2011, vehicle inspection form mistakenly had been included in the 2012 license renewal application. Barrus and Sanabria both testified that Respondent did not transport children in its facility vehicle in 2012, so that in any event, Respondent was not required to submit a vehicle inspection form showing current inspection status for that year. Neither Barrus nor Sanabria disputed that the Health Examination form discovered in its 2012 license renewal application file had been altered by the date having been changed from "6/10/2011" to "6/10/2012." Barrus testified that she did not know how the altered form came to be part of Respondent's 2012 license renewal application. She reiterated that Respondent did not transport children in its facility vehicle in 2012, so that under any circumstances, Sanabria was not required to have a physical examination that year.12/ Findings of Ultimate Fact The undersigned finds the testimony of Barrus and Sanabria regarding the vehicle inspection form issue incredible and unpersuasive. The evidence establishes that Respondent submitted the June 14, 2011, inspection form as part of its 2013 license renewal application. The credible, persuasive evidence in the record gives rise to the inference that when Petitioner discovered the outdated form and contacted Respondent, on December 17, 2013, Respondent intentionally submitted the altered inspection form with the date changed from June 14, 2011, to June 14, 2013. Petitioner discovered this alteration and contacted Respondent. Thereafter, in an attempt to comply with the annual inspection requirement, Respondent had the vehicle inspected by Tires Plus on December 18, 2013, and submitted the vehicle inspection form to Petitioner that day. The credible, persuasive evidence further gives rise to the inference that when Petitioner refused to accept the December 18, 2013, form, Respondent created another vehicle inspection form that it dated June 14, 2013, obtained Perez' handwritten name on the form, and submitted the form to Petitioner as an exhibit to the request for hearing that it filed on January 13, 2014.13/ In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. The undersigned also finds the testimony of Barrus and Sanabria regarding the "Health Examination" form in the 2012 application incredible and unpersuasive.14/ The credible, persuasive evidence gives rise to the inference that Respondent altered the Health Examination form by changing the date from "6/10/2011" to "6/10/2012" and intentionally submitted the altered form to Petitioner as part of its 2012 renewal application. In committing this conduct, Respondent misrepresented information and fraudulently provided information to Petitioner related to the child care facility, in violation of section 402.319(1)(a) and Standard 63 of Petitioner's Child Care Facility Standards. In sum, Petitioner has proved, by clear and convincing evidence, that Respondent committed the violations alleged in the Amended Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, enter a final order imposing a $200.00 administrative fine on Respondent, My First School, Inc.; converting Respondent's child care facility license, License No. C11MD1476, to probation-status for a six-month period; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 6th day of August, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2014.
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.
The Issue The issues in this matter are whether Respondent, the owner of a child care facility, committed the violations alleged in the Administrative Complaint; and, if so, what is the appropriate sanction for the violation.
Findings Of Fact Based on the evidence adduced at hearing, and the complete record, the following Findings of Fact are made: DCF is authorized to regulate child care facilities pursuant to sections 402.301 through 402.319, Florida Statutes. Section 402.310 authorizes DCF to take disciplinary action against child care facilities for violations of sections 402.301 through 402.319. A to Z Child Development Center (A to Z) is a child care facility owned and operated by Jill Johnson at 1049 East 8th Street, Jacksonville, Florida. The license number is C04DU1409. It is undisputed that on December 20, 2020, Respondent received a citation for employing a person for which she had not conducted a background screening following a 90-day break in employment. At all times material to this matter, E.L. was a child care provider working at A to Z. She began working with the facility on February 2, 2021. E.L. had been cleared and found “eligible” to work as a child care provider on April 6, 2017, at a different child care facility. On April 22, 2021, Gretrell Marshall, a DCF licensing counselor, conducted a routine inspection of the child care facility. Ms. Marshall has 20 years working with DCF. She has worked as a family services counselor for three years and has been trained to inspect child care facilities. Before working with DCF, Ms. Marshall owned a family day care home for two years and served as a director for a child care facility for seven years. During her inspection of A to Z, Ms. Marshall reviewed the employment records for each employee of the facility. Specifically, she reviewed the file for E.L. and discovered that the background screening for E.L. was completed on April 9, 2021. This was a concern for Ms. Marshall as child care personnel should update their background screening if there is more than a 90-day absence from working as a child care provider. Ms. Marshall reviewed the completed background screening report and employment history form for E.L. The background screening report dated February 3, 2021, reflected that E.L. had successfully passed a background screening on April 6, 2017. The employment history and reference form reflected that E.L. was last employed as an assistant teacher at Nono’s Home Daycare (Nono’s). The employment dates were listed as October 2019 to Present. Although there is a question regarding whether E.L. had a 90-break in employment or worked at Nono’s, she was subsequently she was deemed eligible to work with children. Ms. Marshall then reviewed the DCF Child Care Administration, Regulation and Enforcement System (CARES). CARES maintains employment history information for child care personnel, including new employee information, verifying existing employees, and checking employment history. The information input in the system is reported by employers. However, employees do not have access to review information in the system. Ms. Marshall’s review of CARES reflected that E.L.’s most recent employer was with T and A Learning Center, which terminated in February 2020. CARES did not reflect that E.L. worked at Nono’s. After review of E.L.’s employee records, Ms. Marshall concluded that E.L.’s background screening should have been completed on February 2, 2021, when E.L. began working at A to Z. Ms. Marshall testified that the form reflected that Jill Johnson was identified as the person contacted to verify employment. The evidence of record demonstrated that the person contacted was actually Nono Johnson (owner of Nono’s) instead of Respondent’s owner, Jill Johnson. Ms. Marshall also reviewed the renewal application records for Nono’s. There was no record in the renewal applications that E.L. was an employee. Relying upon her review of E.L.’s records maintained by Jill Johnson, the renewal applications for Nono’s, and the CARES records, Ms. Marshall determined that a background screening was warranted for E.L. because it appeared that she had a 90-day break in employment. Ms. Marshall did not interview Nono Johnson and she did not interview E.L. In addition, neither person testified at the final hearing. Ms. Marshall testified that a factor in making her decision was that the employment history form for E.L. did not clearly indicate the person contacted for employment verification. However, the record reflects that Nono Johnson was listed as the person contacted to verify the background reference check. The threshold issue in this matter is whether E.L. worked for Nono’s. If E.L. worked for Nono’s, the background screening would not be required. On the other hand, if E.L. did not work for Nono’s, E.L. would be required to perform the background screening due to the 90-day break in employment. Ms. Johnson presented the testimony of Crystal McMillion, who assisted Ms. Johnson with the reference checks. She testified that she spoke to Nono Johnson and verified that E.L. worked at Nono’s during the dates provided on the employment history form. Ms. McMillion testified that she then logged into the background screening portal and verified that E.L. had previously successfully completed a background screening in 2017. Ms. McMillion was the only witness with direct knowledge of the employment verification for E.L. Ms. McMillion has experience as a child care facility operator and understands what is required to conduct employment verification. The undersigned found her to be credible and truthful. However, her testimony was uncorroborated hearsay.1 Such evidence may not be considered by the undersigned as a basis for findings of fact. Assuming Ms. McMillion made an error in her employment verification as argued by Petitioner, the question remains whether Nono’s failed to properly disclose all its employees and E.L. was in fact an employee. The undersigned finds it unlikely, but possible, that E.L. presented erroneous employment history information. Another possibility is that the records for Nono’s did not accurately reflect all of its employees and, thus, such information was not put into CARES. Neither Nono Johnson nor E.L. testified at the hearing. Likewise, the record does not include any interview statement made by Nono Johnson or E.L. The only evidence presented by DCF to demonstrate that E.L. had a 90-day break in employment was the absence of records for Nono’s, a facility over which Respondent has no control. This evidence is not sufficient to meet the clear and convincing evidence burden in this matter. Ultimate Finding of Fact Based on the evidence presented at the hearing, the undersigned finds that there was no clear and convincing evidence to establish that E.L. had a 90-day break in employment. As a result, there is no clear and convincing evidence to establish that Respondent was required to obtain background re-screening for E.L. DCF’s burden in this case is to prove the facts alleged in the Administrative Complaint by clear and convincing evidence, and the credible admissible evidence did not meet that burden. 1 Because Nono Johnson did not testify during the final hearing, the portion of Ms. McMillion’s testimony concerning Nono’s verification of employment is uncorroborated hearsay that cannot support a finding of fact. See § 120.57(1)(c), Fla. Stat. (2020)(providing that “[h]earsay evidence may be used for the purpose
Conclusions For Petitioner: David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 For Respondent: Jill Johnson, pro se A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order dismissing the Administrative Complaint against Jill Johnson d/b/a A to Z Child Development Center. DONE AND ENTERED this 30th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2021. COPIES FURNISHED: Shevaun Harris, Secretary Department of Children and Families 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 David Gregory Tucker, Esquire Department of Children and Families 5920 Arlington Expressway Jacksonville, Florida 32211 Javier Enriquez, General Counsel Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303 Jill Johnson A to Z Child Development Center 1049 East 8th Street Jacksonville, Florida 32206 Danielle Thompson, Agency Clerk Department of Children and Families Office of the General Counsel 2415 North Monroe Street, Suite 100 Tallahassee, Florida 32303
The Issue Whether Respondent, in November 2006, violated child care facility licensing standards relating to supervision set forth in Florida Administrative Code Rule 65C-22.001(5), as alleged by the Department of Children and Family Services (Department) in its December 15, 2006, letter to Respondent. If so, whether Respondent should be fined $1,000.00 for this violation, as proposed by the Department in the aforesaid December 15, 2006, letter.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, including Thursday, November 16, 2006, Respondent operated a child care facility located at 780 Fisherman Street in Opa Locka, Florida (Facility) pursuant to a license issued by the Department, which was effective June 10, 2006, through June 9, 2007. On November 16, 2006, J. D. was one of nine children between the ages of 12 and 23 months in the Facility's Wobbler/Toddler class. Two properly credentialed Facility staff members, Charnette Muldrow and Barry Thompson, were assigned to oversee the children in the class that day. Cheryl Smith is now, and was at all times material to the instant case, including November 16, 2006, the Facility's office manager. Among her various responsibilities is to make sure that state-mandated staff-to-child ratios are maintained in each of the Facility's classrooms. To this end, she has placed posters in the classrooms indicating what these "appropriate ratios" are and that they "must be maintained at all times." In addition, she "do[es] counts [of staff and children in each classroom] every hour on the hour." She did these "counts" in J. D.'s Wobbler/Toddler classroom on November 16, 2006, and each time found the staff-to-child ratio to be "correct" (one staff member for every six children). Sometime around noon on November 16, 2006, a Facility staff member brought J. D. to Ms. Smith's office. J. D. was not crying, although she had a roundish red mark on her right cheek that she had not had when her mother had dropped her off at the Facility earlier that day. "It looked like ringworm to [Ms. Smith] at first." There were no discernible "puncture wounds," nor was there any blood. The staff member who had brought J. D. to the office explained to Ms Smith that J. D. had "bumped her face" on the "corner cabinet in the classroom." After administering first-aid to J. D., Ms. Smith attempted to contact J. D.'s mother, J. F., by telephone. She was unable to reach J. F., but left a message at J. F.'s workplace. J. F. returned Ms. Smith's call at 12:54 p.m. and was told by Ms. Smith that J. D. had "bumped her head on a cabinet while playing, and she ha[d] a little bruise," but was "doing fine." J. F. left work at 4:30 p.m. and went directly to the Facility to pick up J. D. Upon arriving at the Facility, J. F. first went "upstairs" to see Ms. Smith, who told her "about the incident and what [had] happened." J. F. then went to retrieve J. D. (who was "downstairs"). It did not appear to J. F., when she examined the mark on J. D.'s cheek, that the mark was "from the cabinet." In her opinion, it looked like J. D. had been bitten by "somebody,"4 a view that she expressed upon returning to Ms. Smith's office. Ms. Smith replied, "There's no biters in here.5 Nobody bit J." Before leaving the Facility with J. D., J. F. signed an Accident/Incident Report that Ms. Smith had filled out. According to the completed report, on "11/16/06 at 12:00 noon," J. D. "was playing with . . . toys and bumped her face on the corner cabinet," leaving a "red mark on the right side of her face"; Mr. Thompson was a "[w]itness[] to [the] [a]ccident/[i]ncident"; the injured area was treated with "antiseptic spray[,] triple antibiotic ointment and a cold compress"; and a message was left with J. F. "to call school." J. F. took J. D. directly from the Facility to the Skylake office of Pediatric Associates, a pediatric group practice to which J. D.'s regular pediatrician belonged. J. D.'s regular pediatrician was unavailable that evening, so J. D. saw someone else,6 who gave her a signed and dated handwritten note, which read as follows: To whom it may concern The injuries on [J. D.'s] cheek and back are consistent with a human bite. Please investigate.[7] Thank you. J. F. reported to the local police department, as well as to the Department, that J. D. had been injured at the Facility. J. F. provided this information to Ian Fleary, the Department's childcare licensing supervisor for the north area of the southeast zone, during a visit that she made to Mr. Fleary's office late in the afternoon on Friday, November 17, 2006. J. F. brought J. D. with her to Mr. Fleary's office and showed Mr. Fleary the red mark on J. F.'s cheek, as well as three other, less visible marks on J. F. (one on her cheek, beneath the red mark; one on her lower back; and one on her right forearm).8 Mr. Fleary took photographs of all four marks.9 Mr. Fleary asked one of his subordinates, Linda Reiling, to "address [J. F.'s] complaint as soon as possible." Ms. Reiling, accompanied by Mr. Fleary, went to the Facility on Monday, November 20, 2006, to investigate J. F.'s complaint. Ms. Reiling and Mr. Fleary interviewed Facility staff members, including Ms. Muldrow and Mr. Thompson.10 Ms. Muldrow stated that she had gone to the restroom, having asked another staff member "to watch the children" in her absence, and first "saw the mark on [J. D.'s] cheek" upon her return to the classroom. Mr. Thompson advised that he was "on lunch break at the time the incident occurred."11 No one to whom Ms. Reiling and Mr. Fleary spoke at the Facility "admitted seeing [J. D.] being bitten." Based on her investigation, Ms. Reiling was unable to determine, one way or another, whether the staff-to-child ratio in J. D.'s classroom was "correct" on "[t]he day of the incident," but she did find that there was a "lack of supervision." Ms. Reiling prepared a written complaint documenting this finding and provided it to Ms. Smith. Meloni Fincher, a child protective investigator with the Department, also investigated the matter. She was assigned the case on November 17, 2006, after the incident had been reported to the Florida Abuse Hotline. Ms. Fincher began her investigation by visiting J. F. and J. D. at their home that same day (November 17, 2006), some time after 4:00 p.m. During her visit, Ms. Fincher observed that J. D. had "bruises to her cheek, her back, and [also] her arm." Ms. Fincher was unable to determine the nature or cause of these injuries, so she made arrangements for J. D. to be seen on November 21, 2006, by a University of Miami Child Protection Team physician. Ms. Fincher went to the Facility on November 21, 2006, but was unable to speak to any staff members about the incident at that time. She returned to the Facility on December 7, 2006. This time, she interviewed Ms. Muldrow, Mr. Thompson, Ms. Smith, and Dawnise Mobley.12 None of the interviewees claimed to be an eyewitness to the incident, having personal knowledge of what happened to J. D. After receiving a copy of the Child Protection Team's "medical report," which contained the team's determination that J. D. had "bite marks at different stages [of] healing [which were] consistent with another child [having] bit[ten] [her]," Ms. Fincher, on December 12, 2006, "closed the case" finding "[v]erified indicators of inadequate supervision."13 The evidence received at the final hearing does not allow the undersigned, applying a clear and convincing competent evidence standard, to reach the same conclusion that Ms. Fincher and Ms. Reiling did regarding the adequacy of the supervision J. D. received at the Facility on November 16, 2006. While the evidence is sufficient to support a finding that J. D. suffered a single (red) mark on her right cheek while at the Facility that day, it does not clearly and convincingly establish that she was being inadequately supervised at the time. Inferring that Respondent failed to provide J. D. with adequate supervision based on the mere fact that she received this mark while in Respondent's care is unwarranted, absent a clear and convincing showing (enabling the undersigned to conclude, with a firm belief and conviction and without hesitancy) that a toddler would not receive such a mark while at a child care facility in a classroom setting like J. D. was in unless there was a lack of adequate supervision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order dismissing the "inadequate supervision" charge made in its December 15, 2006, letter to Respondent. DONE AND ENTERED this 11th day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2007.
