The Issue Whether the Petitioner correctly cited the Respondent with a Class I violation when the Respondent left an unscreened individual to supervise children in the Respondent’s care, and, if so, is the proper penalty an imposition of a $100.00 fine and termination of the Respondent’s Gold Seal designation.
Findings Of Fact KinderKids is a child care facility licensed by the Department as License No. C11MD1905. KinderKids is located at 26049 South Dixie Highway, Naranja, Florida 33032. Fatima Zaldiba ("Zaldiba") owns and operates KinderKids. KinderKids has been in operation since January 1, 2011. The Department awarded KinderKids a Gold Seal on July 11, 2012. KinderKids offers a full readiness program, infant care, and an aftercare program. On March 12, 2015, Zaldiba informed Raimy Coipel ("Coipel"), the pre-K age four teacher and afternoon director, that a volunteer was coming to the school. Zaldiba instructed Coipel to train and supervise the volunteer with the four-year- olds for two hours. Zaldiba introduced Coipel to the volunteer, Marilys Perez ("Perez"). Coipel took her 12 four-year-old children to the playground area with Perez around four thirty in the afternoon. Coipel left her 12 four-year-old children with Perez on the playground to go meet in the KinderKids' office with Yessenia Plata ("Plata"), the Department’s then family service counselor. Coipel asked Elsita Jalil ("Jalil"), a background- screened pre-K teacher, to supervise Perez and her class while she went to the office. Jalil agreed to watch the volunteer and Coipel’s class. Plata was assigned to conduct a complaint inspection at KinderKids regarding a child who allegedly cut his hand. Plata arrived at the school after four o’clock in the afternoon. Upon her arrival, Plata met with Coipel and Zaldiba regarding the abuse complaint. Plata briefed them about the complaint and took their statements regarding the complaint. Afterwards, Plata proceeded to walk the facility inspecting the center, going class-by-class checking the ratios of children. Plata took the ratios of the classes inside the building first. That same day Plata also checked the ratios of the children on the playground and Coipel escorted her around. Plata met Perez, the volunteer, who was outside on the playground watching Coipel’s four-year-old class. Plata questioned Perez about the abuse complaint. Jalil met Perez for the first time on March 12, 2015, when Coipel asked Jalil to supervise Perez and her classroom outside on the playground. Jalil never left Perez or the four- year-olds alone. Jalil remained on the playground at the same time with her three-year-old class supervising Perez and the four-year-old class the whole time Perez was with the children while Coipel was away.1/ After checking the ratios, Plata and Coipel returned to the KinderKids' office. Plata requested the employee files for Coipel and Perez, the two new individuals working at KinderKids who had not been there at the time of the last inspection, so that she could update their background screening and training. Zaldiba provided Plata Coipel's file, including the requested background screening. Zaldiba informed Plata that she did not have a background screening for Perez because she was on a trial period. Zaldiba even explained that she was not sure if she was going to keep her. Plata responded by telling Zaldiba that Perez had to leave the day care facility immediately because she did not have a background screening and that Coipel should take over the care of the four-year-olds. Zaldiba followed Plata's instructions and had Perez leave immediately. Plata informed Zaldiba that she was going to give her a Class I violation for having an unscreened person left with the children. Zaldiba explained to Plata that Perez was a volunteer she was trying out to determine if she was going to hire her at KinderKids. Zaldiba also tried to provide Plata with Perez’s Volunteer Acknowledgement Form, but Plata would not accept it.2/ Instead, Plata repeatedly requested a background screening document for Perez, which Zaldiba did not have for Perez. Since Plata had Zaldiba send Perez away from the facility, Plata was unable to verify Perez's position with her in person. Zaldiba tried to find Perez’s information and to make contact with Perez in front of Plata but was not able to do so. Plata requested a Department specialist in background screening to run Perez’s name and three individuals named Marilys Perez were found, but none of them looked like the person she had talked to on the playground earlier. Plata determined that no indicators existed for the abuse complaint and closed the case. However, Plata believed that Zaldiba came up with a story about Perez being a volunteer and that it was never proven to her, so she cited KinderKids with a Class I violation. Perez was never paid for her volunteer work. On March 17, 2015, the Department issued KinderKids an Administrative Complaint, citing the Respondent with a Class I violation of Standard #5, Supervision Rule, charging the facility with having Perez as an unscreened individual, left alone to supervise children in their care. The Administrative Complaint also terminated KinderKids Gold Seal designation. KinderKids contested the Administrative Complaint and requested a hearing.
The Issue Should the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. (Wonderland), be terminated under the authority of section 402.281(4)(a), Florida Statutes (2015)1/ on account of a “class I violation?”
Findings Of Fact Wonderland is a child care facility licensed by Hillsborough County. Ms. Wilson owns and operates Wonderland. The Department awarded Wonderland a Gold Seal Quality Care designation effective May 9, 2011. The Department’s letter advising Wonderland that it had been awarded the Gold Seal designation also advised Wonderland that to maintain the Gold Seal it must not have a “class I violation.” (Ex. 2). Wonderland’s application for a sales and use tax exemption, signed by Ms. Wilson, stated that to qualify for the exemption the application must hold a “current Gold Seal Quality Care designation as provided in s. 402.281, F.S. ” (Ex. 3). Section 402.281(4)(a) states that a child care provider must not have any “class I violations” in order to maintain its Gold Seal designation. Ms. Wilson knew, or should have known, that a “class I violation” would result in the loss of Wonderland’s Gold Seal designation. On April 20, 2015, Hillsborough County’s Children and Youth Services issued an Administrative Complaint (Complaint) against Wonderland proposing to administer a “class I violation” based upon a determination that Wonderland did not provide adequate supervision for the children. Specifically, the Complaint charged that on March 5, 2015, a four-year-old child left the facility and walked across the street without the staff’s knowledge. The Complaint told Ms. Wilson that Wonderland had a right to request an administrative hearing to challenge the Complaint. Ms. Wilson chose not to challenge the Complaint. She elected for Wonderland to pay the proposed $250.00 fine. Ms. Wilson did not think of the effect accepting the Complaint would have upon Wonderland’s Gold Seal Quality Care designation. The Complaint did not advise of this collateral consequence. But, as found above, Ms. Wilson and Wonderland knew or should have known of it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Children and Families, terminate the Gold Seal Quality Care designation of Respondent, Wonderland Day Care, Inc. DONE AND ENTERED this 9th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2016.
The Issue Whether Florida Administrative Code Rules 65C- 22.009(2)(b)1. and 3., are invalid exercises of delegated legislative authority and whether a statement in a Gold Seal Quality Care Program Fact Sheet constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department of Children and Families (DCF or Department) is the agency of the State of Florida that regulates child care facilities, large family child care homes, and family day care homes within the state to protect the health and welfare of the children in care. Petitioner RCMA is a child care facility licensed by the Department and located in Arcadia, Florida. RCMA's current child care facility license #CI2DE0009, is effective January 1, 2012, through December 31, 2012. Child care facilities, large family child care homes, and family day care homes in Florida that meet criteria demonstrating that they exceed the minimum licensing requirements and promote quality child care are eligible for Gold Seal Quality Care designation by DCF. Designation indicates a facility providing a higher standard of care. Gold Seal Quality Care designation has no bearing on licensure as a child care facility, large family child care home, or family day care home. A Gold Seal Quality Care designation is an authorization required by law in order for a facility to receive certain tax benefits and enhanced school readiness program reimbursement from the Early Learning Coalition. Issuance of a Gold Seal Quality Care designation is not merely a ministerial act and it is not a license required primarily for revenue purposes. Gold Seal Quality Care designation is a license. DCF granted RCMA Gold Seal designation on March 31, 2008. On December 29, 2011, DCF issued an Administrative Complaint alleging that RCMA committed a Class I licensing violation. The Administrative Complaint sought to impose sanctions against RCMA's child care facility license and to revoke RCMA's Gold Seal designation. On or before April 27, 2012, RCMA's accrediting association, the National Association for the Education of Young Children (NAEYC), revoked RCMA's accreditation. There was no evidence at hearing as to whether its action was based solely upon DCF's allegations in the Administrative Complaint that RCMA had committed a Class I licensing violation.1/ On or about May 24, 2012, RCMA was notified of the Department's intended action to revoke its Gold Seal designation because NAEYC had revoked RCMA's accreditation. The notification letter advised RCMA of its right to request a hearing, but was not in the form of an Administrative Complaint. It was stipulated by the parties that Petitioner is substantially affected by rules 65C-22.009(2)(b)1. and 3. On August 6, 2012, Administrative Law Judge R. Bruce McKibben issued a Recommended Order on the Administrative Complaint in DOAH Case No. 12-750, concluding that DCF had failed to prove the Class I licensing violation and recommending that the Administrative Complaint and Revocation of Gold Seal Quality Care Designation be dismissed. On August 27, 2012, DCF entered a Final Order rescinding the Administrative Complaint. Ms. Sherrie Quevedo was the Child Care licensing Supervisor for the geographic area including Arcadia, Florida, at the time of the formal hearing on the Administrative Complaint against RCMA's child care facility license. Ms. Quevedo was a supervisor called by Respondent and her statements as to policies of DCF were regarding matters within the scope of her employment. Ms. Quevedo did not work in the policy-making arm of DCF, and she could not speak authoritatively as to the Department's interpretation of statutes implemented by DCF. Ms. Deborah Russo is the Director of Child Care Regulation Office at DCF, where she is responsible, in conjunction with Department leadership and the General Counsel's Office, for establishing Department policies and implementing statutes setting out legislative policies. The Department terminates the Gold Seal designation for a facility when its accreditation expires or when it is revoked by the accrediting organization. Ms. Russo testified that it is DCF's interpretation of section 402.281, Florida Statutes, that the Department does not have discretion not to terminate a child care facility's Gold Seal designation if that facility's accrediting association revokes the provider's accreditation. The Gold Seal Quality Care Program Fact Sheet contains the statement that "section 402.281(3), Florida Statutes, requires that the Department deny or revoke a child care provider's Gold Seal Quality Care designation" if the provider has a Class I violation within a two-year period (the Statement). The fact sheet was distributed to Gold Seal child care facilities throughout the State of Florida in 2009 and the Statement is of general applicability to all child care facilities designated as Gold Seal Quality Care providers. The Statement, or a substantially similar statement reflecting the Department's interpretation of the statute, has not been adopted as a rule under chapter 120, Florida Statutes. RCMA has committed no licensing violations defined by DCF rule as a Class I violation during the two years preceding the rule challenge petition in this case.
The Issue The issues are whether Respondent allowed a person without background screening, unaccompanied by another screened adult, to supervise a class of three-year-old children; and, if so, the penalty, including whether Petitioner may terminate Respondent's participation in the Gold Seal Quality Care program.
Findings Of Fact Respondent is a licensed child care facility. Respondent has not previously been guilty of any Class I or II violations for a period of time of not less than two years. In response to a complaint involving the use of an unscreened person to supervise children, Petitioner's inspector visited the facility and checked each of the classrooms. She found that the three-year-old classroom was supervised by Marly Pachon with no other adult present in the room. After examining the personnel records and other sources, the inspector correctly determined that Ms. Pachon had not undergone background screening. The inspector brought this violation to the attention of the director, who promptly remedied the violation by assuming responsibility herself to supervise the class, as the director has successfully completed background screening. After discussing her findings with her supervisor, Ms. Pachon cited Respondent for a violation of Standard 4-18, which, as described below, is a Class I violation. After considering the statutory factors listed below, Petitioner imposed a $100 fine, which resulted in the termination of Respondent from the Gold Seal Quality Care program. Respondent's defenses are that Ms. Pachon was a volunteer, not an employee, and the subject children were not alone with Ms. Pachon because, in an adjoining room, a screened teacher was supervising her four-year-old class. However, the physical dividers between the classes were sufficient to require the designation of each area as a separate classroom, which was how Respondent was using the space.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of a Class I violation for allowing an unscreened person to be alone with children in care; imposing a $100 fine; and terminating Respondent's participation in the Gold Seal Quality Care program until Respondent requalifies for this designation. DONE AND ENTERED this 7th day of August, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of August, 2018. COPIES FURNISHED: Juan Mendez Babani, Esquire Mendez Babani Law 11900 Biscayne Boulevard, Suite 289 North Miami, Florida 33181 (eServed) Patricia E. Salman, Esquire Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue The issue in this case is whether Respondent's designation as a Gold Seal Quality Care Program provider should be revoked pursuant to section 402.281, Florida Statutes (2010).1/
Findings Of Fact Gold Star is a child care facility which is licensed by the Brevard County Health Department, Brevard County, Florida (Brevard County), pursuant to section 402.308(4). The Department designated Gold Star as a Gold Seal Quality Care Program provider. As a Gold Seal Quality Care Program provider, Gold Star receives certain benefits which include sales tax exemptions, increased reimbursement rates for children participating in school readiness, and participation in the Voluntary Prekindergarten. Additionally, the designation is a positive marketing tool. In 2009, the Department sent a notice to providers who were designated as Gold Seal Quality Care Program providers, advising them that the Department would revoke designations of providers who had a Class I violation within a two-year period. The Department received an acknowledgement dated June 20, 2009, and signed by Donna Krinop, who was the director of Gold Star, acknowledging that Gold Star had received notice that the Department would revoke the designation of a provider who had a Class I violation within a two-year period. Class I violations are the most serious in nature and pose an imminent threat to a child, which has resulted, or may have resulted, in death or serious harm to the health, safety, or well-being of a child. Fla. Admin. Code R. 65C-20.012(1)(d). By letter dated September 15, 2010, Brevard County notified Gold Star that Gold Star was in violation of rule 65C-22.001(5), by failing to adequately supervise children which resulted in a child obtaining and throwing scalding water on another child. The violation is a Class I violation. In addition to the incident with the scalding water, Brevard County noted that on an inspection conducted on June 30, 2010, the inspector noted that a maintenance worker was teaching four-year-old children and that after-school children were given a battery-operated leaf blower to blow off the sidewalk as a form of punishment. The letter also provided the following instructions for requesting an administrative hearing to contest the disciplinary action: WHEREFORE, pursuant to Section 402.310, Florida Statutes and Section Ordinance 26-70 thru 77 Brevard County Code, the Brevard County Health Department, Environmental Public Health Services is fining childcare license 07B881 $500.00. You are hereby notified that pursuant to Section 120.57, Florida Statutes, you are entitled to an administrative hearing. Please be advised that a hearing will not be automatically scheduled. In the event that you wish to contest the fine, you must submit a written request for an administrative hearing pursuant to Section 402.310(2), Florida Statutes. Environmental Public Health Services must receive your request for an administrative hearing within 15 days for [sic] receipt of the formal administrative complaint at the following address: Melissa L. Brock, R.E.H.P., Environmental Manager Environmental Public Health Services Brevard County Health Department Brevard County Government Center 2725 Judge Fran Jamieson Way, Building A116 Viera, Florida 32940-6682 Upon timely receipt of your written request, an administrative hearing to determine whether your license will be fined will be expeditiously scheduled. Failure to request a hearing in writing within 15 days of receipt of the administrative complaint shall be deemed a waiver of any right to a hearing under Section 120.57 Florida Statutes, and the administrative fine of your license will be final. Section 402.310(2), Florida Statutes. Payment is due at the time the fine becomes final. In the event you request an administrative hearing, you have the right to be represented by counsel, to take testimony, to call and cross-examine witnesses and to have a [sic] subpoenas or subpoenas duces tecum issued on your behalf, Rule 28-106.212, Florida Administrative Code. Donna Krinop wrote Ms. Brock on September 17, 2010, stating: "Nothing in this letter was true and we would like to meet with you to discuss this situation." Nothing in the letter indicated that Gold Star was seeking an administrative hearing. A meeting was scheduled for September 28, 2010, for Gold Star to discuss the administrative action with Brevard County staff. By letter dated September 27, 2010, Gold Star advised Brevard County that Gold Star did not think that the findings in the administrative action letter were true, but that Gold Star was complying with corrective actions. Enclosed with the letter was a check for $500.00 and a list of Gold Star staff who had received refresher training on supervision. On September 28, 2010, a meeting was held with Mr. Buchanan, who was an environmental supervisor for Brevard County, and Gold Star staff, including Ms. Krinop. Mr. Buchanan did not tell any Gold Star staff that if the fine was not paid that Gold Star would lose its license. The meeting consisted generally of Gold Star staff stating why they felt that the punishment was too harsh. Ms. Krinop and Ms. Khemwatti Kalikapersaud contend that the letter that was sent by Gold Star on September 17, 2010, was meant as a request for an administrative hearing and that they thought that the meeting on September 28, 2010, was the due process hearing. Their testimony is not credited. On October 21, 2010, the Department sent an Administrative Complaint to Gold Star stating that the Department intended to revoke Gold Star's designation as a Gold Seal Quality Care Program provider based on the Class I violation issued by Brevard County. The Administrative Complaint stated the following: IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING TO CONTEST THE DECISION. YOUR REQUEST FOR AN ADMINISTRATIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT WITHIN 21 DAYS OF YOUR RECEIPT OF THIS NOTICE. FAILURE TO REQUEST AN ADMINISTRATIVE HEARING WITHIN THE 21 DAYS PROVIDED SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING. By letter dated November 17, 2010, Ms. Krinop wrote to the Department to "request an administrative hearing to review the decision of the Health Department [Brevard County]." Gold Star admitted that the incident with the scalding water had occurred and stated: We are dismayed by this unfortunate incident and view it with the utmost seriousness. Further, we do not contest that it resulted in the minor injury of one child, having been unintentionally inflicted by another child. However, we believe that the Health Department may inadvertently be in possession of erroneous information concerning the matter and this has resulted in disproportionate punitive action against GSA [Gold Star]. Specifically, we wish to contest: The extent of the injury as reported in the notification, which is cited as greater than that observed by the responding officer. The qualifications of the supervising staff, who is reported in the notification to be solely a maintenance man and unapproved to supervise, which is incorrect. A child was operating battery powered leaf blower as punishment, which is incorrect. Due to the fact that the incident did occur, GSA understands that the fine imposed by the Health Department is right and fair. However, due to the misunderstanding of facts as outlined above, we do not believe that the revocation of GSA's Gold Seal Quality Care Program Provider Designation is appropriate. Gold Star did not state in its November 17, 2010, letter to the Department that Gold Star had requested an administrative hearing and that Brevard County had failed to give it an administrative hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gold Star committed a Class I violation and revoking its designation as a Gold Seal Quality Care Program provider. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 11th day of May, 2011.
The Issue The issues are whether Respondent allowed an employee without background screening, unaccompanied by a screened individual, to supervise a class of children in care and, if so, what penalty Petitioner should impose.
Findings Of Fact Respondent is a licensed child care facility operating at 28834 South Dixie Highway in Homestead. Respondent has not previously been guilty of any Class I or II violations for a period of time of not less than two years; in fact, Respondent has never been found guilty of a Class I violation at either of its preschools, which opened in 2003 and 2007. On October 6, 2017, Petitioner's inspector conducted a routine inspection of Respondent's child care facility. She found three infants in the classroom for infants up to 12 months of age and observed that the three infants in care were supervised by Yerelis Escobar with no other adult present in the room. The inspector asked the director for the employees' personnel files, and, in producing them, the director discovered that Ms. Escobar's file did not contain documentation of screening. This was Ms. Escobar's first day on the job. Recommended by another teacher at Respondent's preschool, Ms. Escobar had recently worked in a local shelter with children and reportedly had obtained a federal background screening in connection with her job. As the director handed the file to the inspector, the director admitted that she had not obtained documentation of level 2 background screening on Ms. Escobar. The director had delegated this responsibility to another employee, who had failed to discharge this responsibility and has since been terminated. After confirming the supervision violation, the inspector advised the director that the inspector could not leave the building until supervision of the infant classroom was transferred to a screened individual. The director ordered Ms. Escobar to go home and, as a screened individual, assumed the supervisory responsibilities herself until another screened teacher from the other preschool was able to take over the classroom. Ms. Escobar never returned to the facility, and the director has implemented a double-check system to ensure that all new hires possess level 2 background screening, if they are to be left alone with children in care. After discussing her findings with her supervisor, the inspector cited Respondent for a Class I violation--specifically, a violation of Standard 5-13. After considering the statutory factors listed below, Petitioner imposed a $100 fine. Respondent's supervisor testified that the requirement of background screening is fundamental and is most important for the most vulnerable children--namely, infants. The supervisor testified that he was unaware of Petitioner's declining to prosecute any provable Class I violation and any Class I penalty less severe than a $100 fine. This testimony is credited. Respondent claims that, in prior cases, Petitioner has elected not to establish a Class I violation, despite facts establishing such a violation, and instead has imposed a corrective action plan. The problem in Respondent's proof as to these other cases is a failure to preclude the possibility that Petitioner merely has assessed the facts in those cases as insufficient to support a successful prosecution. The problem in Respondent's theory is that it essentially seeks to reject as an abuse of discretion the decision of Petitioner to prosecute a clear violation of a child-safety rule and impose the smallest authorized fine. Respondent is a leading provider of high-quality child care services in Homestead. For the past eight years, Respondent has been accredited by the National Association for the Education of Young Children and is the only preschool holding such accreditation in Homestead. Pursuant to a contract with the Early Learning Coalition, Respondent's school is monitored twice monthly. For its students, 90 percent of whom are at-risk, Respondent offers enrichment programs, such as dance, as well as tutoring and mentoring programs. Respondent also provides its autistic students with daily sessions with a therapist employed by Applied Behavioral Analysis. Respondent is a Gold Seal Quality Care provider. As noted below, this designation is terminated upon the final assessment of a Class I violation, which is why Respondent seeks to avoid this determination by, for instance, the imposition of a corrective action plan, even with a larger fine. Respondent's annual gross revenues total about $300,000, but the loss of the Gold Seal Quality Care designation may reduce Respondent's annual gross revenues by as much as $264,000, which may result in the closure of the preschool.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of allowing an unscreened employee, in the absence of a screened individual, to supervise a classroom of children in care; imposing a $100 fine; and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 7th day of September, 2018, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of September, 2018. COPIES FURNISHED: Patricia E. Salman, Esquire Department of Children and Families 401 Northwest 2nd Avenue, Suite N-1014 Miami, Florida 33128 (eServed) Lucy C. Piñeiro, Esquire Lucy C. Piñeiro & Associates, P.A. 717 Ponce de Leon Boulevard, Suite 309 Coral Gables, Florida 33134 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) John Jackson, Acting General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Petitioner's application for approval as a Gold Seal Quality Care Accrediting Association was properly denied.
Findings Of Fact Gold Seal Accreditation This case involves the State of Florida's Gold Seal Quality Care designation ("Gold Seal designation") provided to qualified child care facilities pursuant to section 402.281, Florida Statutes. The Gold Seal designation signifies a child care facility's successful completion of an application and audit process to determine its adherence to heightened standards. It entitles the bearer to numerous potential benefits, including tax exemptions, higher reimbursement rates for School Readiness, eligibility to participate in the Voluntary Pre-Kindergarten program, and it can be an important marketing tool for child care providers. To be eligible for Gold Seal designation, a child care facility must meet a defined set of qualifications and standards. Whether those standards are met is based upon the assessment provided to DCF by an approved accrediting association. An entity does not need to be approved by DCF to accredit child care providers. However, an entity must be approved by DCF as a Gold Seal Quality Care Accrediting Association to provide the verification to DCF for the purpose of Gold Seal designations. An accrediting association attests that a child care facility receiving its certification meets the Gold Seal standards. Only the State of Florida approves and "issues" the actual Gold Seal certification. The Parties DCF is authorized to approve Gold Seal Accrediting Associations. The Children's Forum is contracted by DCF to manage the Gold Seal Program. Enterprising Business Solutions, Inc. ("EBS"), is the accrediting association applicant at issue in this case. EBS has been a registered corporation in Florida since 1997. It is a business consulting and management firm. Its President, former Florida State Representative and Senator Ellyn Bogdanoff, was significantly involved in passing legislation and rules governing child care facilities and accreditation. Petitioner, Raising Florida, is the name of EBS's accreditation product and is registered as a fictitious name of EBS. On January 30, 2020, EBS filed an initial Gold Seal Quality Care Accrediting Association Application (the "Application") with the Children's Forum. The application was reviewed by DCF and the Florida Children's Forum. On June 30, 2020, DCF issued a Notice of Denial letter denying the Application. The Department's stated reason for denying the application was because EBS "failed to provide supporting documentation to demonstrate that the accrediting association has been established in issuing accreditation in Florida for at least five years, Rule 65C-22.009(4)(a)1, Florida Administrative Code." In addition, DCF stated that an accrediting association "must demonstrate that it is a recognized accrediting association, s. 402.281(3)(a)1, Florida Statutes." EBS' Role with FACCM The Florida Association for Child Care Management ("FACCM") is an organization made up of, and representing, child care providers in Florida. It advocates on behalf of child care facilities, and it also created the APPLE child care accreditation program. APPLE is the FACCM accreditation product issued to its child care member facilities, which qualify for the accreditation. To qualify, child care facilities are required to meet a defined set of qualifications and standards, determined by the APPLE program. APPLE is a recognized Gold Seal accrediting tool. If a child care facility is certified by APPLE, it becomes eligible to receive the Gold Seal designation, pursuant to section 402.281. In May 2012, Ms. Bogdanoff and her management company, EBS, were retained by FACCM to oversee its growing membership of child care facilities, oversee its lobbying efforts, and to manage the APPLE accreditation program. Ms. Bogdanoff was appointed Executive Director on a part-time basis and reported to FACCM's Board. Dan Osborne, the then- Board President of FACCM, explained that retaining Ms. Bogdanoff and EBS was an effort to get the Board out of FACCM's day-to-day operations. Ms. Bogdanoff worked for FACCM through EBS until May 2018. As FACCM's Executive Director, Ms. Bogdanoff rewrote APPLE's existing standards for accreditation. She also developed a training program for child care centers to help them achieve accreditation, visited the centers to administer that training program to educate centers regarding accreditation benchmarks, oversaw a FACCM staff to manage the accreditation process, including an APPLE Director (Ms. Layton), and several other directors of marketing, operations, and CORE, who all reported directly to Ms. Bogdanoff and EBS, not the FACCM Board. From May 2012 through May 2018, Ms. Bogdanoff and FACCM staff determined which programs passed the APPLE accreditation process, and which did not. During this time period, child care facilities accredited under APPLE received a certification or notification from APPLE--not from FACCM or EBS. However, as a minimum requirement for Gold Seal consideration using the APPLE criteria, the child care facilities were required to be members of FACCM. APPLE accreditation accounts for nearly all of FACCM's generated revenues, and the availability of Gold Seal accreditation certification is a primary incentive for membership in FACCM. There is no written contract detailing the relationship between Ms. Bogdanoff, EBS, and FACCM. Nothing was sent to child care facilities from FACCM referencing EBS. The child care centers, which were Gold Seal qualified through APPLE, had a relationship with FACCM, not EBS. EBS was the means to contract with, and pay, Ms. Bogdanoff for her expertise. In support of the Application, Ms. Bogdanoff attached a letter of support from Mr. Osborne that indicated that he looked "forward to becoming [EBS's] first Provider client." EBS was the management company that oversaw the APPLE accrediting process, however, EBS did not hold itself out to be an accrediting agency nor did it issue certifications of meeting Gold Seal standards other than through FACCM.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for approval as a Gold Seal Quality Care Accrediting Association be denied. 1 As indicated in paragraph 5 herein, only the state of Florida actually "issues" accreditation. However, as used by both parties throughout these proceedings, when referring to associations "issuing" accreditation, it is understood that this means issuing the certification upon which DCF relies that the child care facility meets the applicable Gold Seal standards. 2 EBS presented evidence that DCF recently approved the application of another entity, Cognia, which EBS alleges did not exist as an accrediting association for five years preceding its application. Insufficient evidence was presented from which the undersigned could discern the circumstances of the DCF approval of that application, and, therefore, it was not considered in this determination. DONE AND ENTERED this 15th day of December, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 15th day of December, 2020. COPIES FURNISHED: Stefanie Beach Camfield, Esquire Department of Children and Families Building 2, Suite 204 1317 Winewood Boulevard Tallahassee, Florida 32399 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Mark J. Stempler, Esquire Becker & Poliakoff, P.A. 7th Floor 625 North Flagler Drive West Palm Beach, Florida 33401 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 2, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent employed an individual who was ineligible to work in a child care facility due to his disqualifying criminal history and, if so, what penalty Petitioner should impose.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. Respondent is a licensed child care facility (License ID number C18SE0109) operating at 295 Oxford Road, Fern Park, Florida. It has been operated by the same owner for 25 years. As a Family Service Counselor, Mr. Ross’s duties include conducting inspections of licensed child care facilities, including Royal. On October 15, 2018, in the afternoon around 2:00 p.m., Mr. Ross arrived at Royal to conduct a renewal inspection. Although his appearance for the inspection was unannounced, Royal had applied to renew its license, which would require an inspection. Mr. Ross’s inspection lasted for approximately three hours. During this time, there were approximately 56 children and ten staff members at the Royal facility. As part of his inspection, Mr. Ross checked Royal’s personnel files for proper employment background screening documentation on all the employees. Because he had inspected Royal previously, he was familiar with some of the staff. While Mr. Ross was in Royal’s administrative office, he saw an unfamiliar adult male outside in the front yard of the campus. Later, the same man walked into the building and past the office. At this point, Mr. Ross asked Royal’s director, Ms. Henein, about the identity of the man. Ms. Henein informed Mr. Ross that the man, Miguel Lespier, was an employee; he was not a parent or visitor. Royal had hired Mr. Lespier to perform maintenance on the facility. Mr. Ross then asked for Mr. Lespier’s employment documentation. Ms. Henein did not provide Mr. Ross with any hiring documentation such as a personnel file, resume, application, tax form, or job description. Instead, Ms. Henein claimed Mr. Lespier had just recently been hired and it was his first day. She then went to a computer and printed out a report on Mr. Lespier from the Department’s Level II background clearinghouse. The Department established that employees of a child care facility when children are present must go through a Level II background screening by the Department’s clearinghouse, pursuant to section 435.04, Florida Statutes. As explained by Mr. Ross, the screening consists of a security background investigation to ensure an applicant or employee does not have a pending charge against him or her, or has not been found guilty of the offenses listed in section 435.04 or similar types of offenses in other jurisdictions. The Department clearinghouse screens for both federal and state offenses in order to determine whether the person is eligible for employment in a child care facility. The content of the printout is disputed. Ms. Henein claimed the printout included a document titled “Public Rap Sheet.” Mr. Ross did not believe he saw the “Public Rap Sheet,” but testified he relied solely on the document titled “CLH BGS – Person Profile.” Ms. Henein’s claim that she provided the “Public Rap Sheet” to Mr. Ross is suspect given that it is dated October 16, 2018, a day after the inspection. Even if Ms. Henein’s testimony is to be believed, the “Public Rap Sheet” does not indicate whether Mr. Lespier is eligible for employment as a child care provider, nor does it state whether he has cleared a Level II background screening. Rather, the “Public Rap Sheet” indicates Mr. Lespier had “no Florida criminal history.” It made no findings as to whether he had a criminal history in other jurisdictions. The “CLH BGS – Person Profile” has Mr. Lespier’s photograph and states: “A criminal record may exist for this applicant.” It also indicates a screening request was made by Royal on October 2, 2018; and that the Department found Mr. Lespier “Not Eligible” in the categories of “DCF General,” “DCF Child Care,” and “DCF Substance Abuse-Adult Only” on October 5, 2018. The “CLH BGS - Person Profile” indicates it was printed on October 15, 2018. Regardless, Ms. Henein admitted Mr. Lespier was not eligible for employment based on the results from the Department clearinghouse. “I pulled it up and the first page it’s the rap page – when I saw, it says eligible on it on the first page. And this was okay. And then when I printed out the other pages it says he was not eligible.” Based on the printout, Mr. Ross asked Ms. Henein to tell Mr. Lespier to leave the facility, which she did. Mr. Ross later learned Royal had terminated Mr. Lespier from employment. Royal never disputed Mr. Lespier was deemed “not eligible,” nor does it deny he was an employee. Rather, it claims, the day of the inspection was Mr. Lespier’s first time at the facility, and that he was not supposed to be at Royal until after operating hours. Moreover, it claims it should not be found guilty of a violation because it terminated him as soon as it was made aware that he was “not eligible.” Ms. Henein’s demeanor at the hearing and the lack of consistency in her testimony make Royal’s version of events unreliable. For example, she was unsure of Mr. Lespier’s name (she thought it was Miguel Lopez). She also claimed Mr. Lespier had never been at the facility prior to October 15, 2018, but later testified that on the date of the inspection, Mr. Lespier walked into the building, walked directly to a locked maintenance closet, and knew where the key was located. The testimony as to whether Mr. Lespier was hired to perform work during operating hours was inconsistent. For example, although Ms. Henein insisted he was not supposed to be at the facility until after hours on the date of the inspection, if Ms. Henein thought Mr. Lespier was eligible to work during operating hours based on the “Public Rap Sheet,” as she testified, she would have had no reason to have him come only after hours. Ms. Henein later admitted Royal had conducted the Level II background screening on Mr. Lespier because it anticipated he would be working during operating hours, just not on the date of the inspection. When asked about Mr. Lespier’s work schedule, at one point in her testimony, Ms. Henein stated that on the date he was hired, she told Mr. Lespier to come to the facility on October 15, 2018, and to arrive after hours. She later testified that she called him the morning of the inspection to report to work that day. Notwithstanding these inconsistencies, the evidence establishes the Level II background results deemed Mr. Lespier “not eligible” to work during operating hours on October 5, 2019; he remained an employee until after the inspection on October 15, 2019; and he was working while children were at the facility. As a result of his inspection, Mr. Ross prepared an inspection report and informed the Department he believed Royal had committed a violation of the background screening requirements by employing a person who was deemed “not eligible” to work during hours when children are present at the facility. The Department then filed the Complaint against Royal. Royal has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. Royal’s witnesses established that if this designation is revoked, it would lose this funding, and it may be forced to close its facility. As noted below, this designation is terminated upon the final assessment of a Class I violation, which is why Respondent seeks to avoid this determination.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of a Class I violation by allowing an employee who was ineligible due to his background screening results to be present at the facility during operating hours when children were present, imposing a $250.00 fine, and terminating Respondent's Gold Seal Quality Care designation. DONE AND ENTERED this 8th day of April, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2019.
