The Issue The issues to be determined are whether Respondent committed the violations as alleged in the Administrative Complaint (AC), and, if so, the appropriate penalty.
Findings Of Fact DCF is the state agency responsible for licensing child care facilities and enforcing regulations to maintain the health, safety, and sanitary conditions at those facilities operating in the State of Florida. See §§ 402.305-.311, Fla. Stat.; and Fla. Admin. Code R. 65C-22.010. In order to fulfill its regulatory duty, DCF conducts complaint and routine inspections. The factual allegations, as stated in the AC, provide the following: a. On December 20, 2018, the Department received an allegation that the owner/ director of the facility hit a child on the face with a ruler and slapped him. The teacher also hit another child on the chest with a ruler and that a child had slight bruising and a round scratch under his left eye. The Department conducted an investigation into these allegations starting on December 28, 2018. At the conclusion of the investigation, the Department determined the facility committed Class I violations of child care facility standards for child abuse and unscreened individuals. Licensing Counselor, Tiffani Brown, along with a Child Protective Investigator (CPI) Barbara Smith commenced their investigation on December 28, 2018, after the facility reopened from the holidays. They met with the owners [sic] daughter, Danita Gaines and spoke to the owner via the phone. While at the facility, Counselor Brown questioned Anthony Council, who stated he does help take care of children. Mr. Council was located in a room with children present. Mr. Council is not background screened and was ordered to leave. The owner, Cloe Gaines was on vacation and would not return until 1/2/19. Counselor Brown and CPI Smith returned to the facility on 1/2/19 to speak to the owner. Ms. Cloe Gaines was interviewed, and she stated she is a foster parent. Due to the allegations, Ms. Cloe Gaines was handed a restriction letter, which she signed and left the facility. Counselor Brown and CPI Smith interviewed Ms. Cloe Gaines [sic] foster children. The first foster child, G.M. said for punishment Ms. Cloe Gaines makes him go to sleep. The second foster child, M.M. continued to nod her head indicating yes when asked if he gets spanked for punishment. Counselor Brown and CPI Smith interviewed four other children at the facility. The first child, A.J. stated that Mrs. Cloe whips them with a belt or ruler on the arms and hands. The second child, A.J. stated that Mrs. Cloe hits people if they be bad. The third child, O.E. said that Mrs. Cloe hits them if they are bad with a blue ruler that she keeps in her desk. The last child, T.J. stated that they get hit with a pink and purple ruler that is kept in the classroom. The children were taken to be interviewed by the Child Protection Team for forensic interviews, which were again verified. Based upon the factual allegations in paragraph 3 above, the AC asserts that those allegations constitute the following Class I violations: a. On January 4, 2019, Anthony Council, is an unscreened individual who was left alone to care for children, in violation of Section 435.06(2)(a), Florida Statutes. This constitutes a Class I violation of Child Care Licensing Standard, CF-FSP Form 5316, 4-18, October 2017, incorporated by reference, 65C-22.010(1)(e)l, F.A.C. b. The owner, operator, employee or substitute, while caring for children, committed an act or omission that meets the definition of child abuse or neglect as provided in Chapter 39, Florida Statutes in that four children disclosed child abuse at the hands of the owner Cloe Gaines. A.J., A.J., O.E., and TJ. [sic] disclosed that they are victims of child abuse by Ms. Gaines when she hits them with belts and rulers as a form of discipline in violation of CCF Handbook, Section 8.2, A. This constitutes four (4) Class I Violations of Child Care Licensing Standard, CF-FSP Form 5316, 47-02 and ll-06, October 2017, incorporated by reference, 65C- 22.010(1)(e)1, FAC. Respondent was licensed by DCF to operate a child care facility located at 1550 King Street, Cocoa, Florida. During the hearing, it was disclosed that the Academy had been closed for at least a month. Cloe Gaines (Ms. Gaines) is the owner/director of the Academy. Danita Gaines, Ms. Gaines’ daughter, has worked at the Academy since 2015 as a teacher in the two-year-old classroom. Anthony Council is Ms. Gaines’ grandson and performed maintenance several times at the Academy when asked to do so by Ms. Gaines. Additionally, Mr. Council has a son who attended the Academy. On December 20, 2018, DCF received allegations that Ms. Gaines had hit a child on the face with a ruler. On December 21, 2018, DCF attempted to investigate the alleged child abuse complaint. However, the Academy was closed for winter break, and scheduled to reopen on December 28, 2018. Child Protective Investigator (CPI) Smith, a 13-year DCF employee, located two of the alleged victims of the Academy at their respective homes on December 21, 2018. CPI Smith interviewed B.T., a four-year-old male, who stated that he and his cousin, T.J., were arguing at the Academy. Ms. Gaines called on them and she struck B.T. on the face with a ruler, which caused B.T.’s face to bleed. B.T. stated that T.J. raised his arm in front of his chest and T.J. was struck on his arm. Based on B.T.’s comments, CPI Smith requested that B.T. be taken to the Children’s Advocacy Center of Brevard (CACB) for a video-recorded interview. During the video-recorded interview, B.T. was forthcoming about the injuries he sustained at the Academy. B.T. again stated that he and T.J. were arguing and playing, and Ms. Gaines hit him (B.T.) on the face with a ruler, which caused his face to bleed. B.T. said Ms. Gaines gave him a band-aid for his face. Pictures taken of B.T. on December 21, 2018, show the injuries B.T. sustained. CPI Smith substantiated or verified the abuse of B.T. by Ms. Gaines. B.T. also told CPI Smith where Ms. Gaines kept the ruler she used to hit him. When CPI Smith returned to the Academy, she located the blue ruler in Ms. Gaines’ desk drawer. Another alleged victim, T.J., was also interviewed at his residence on December 21, 2018. T.J. recounted that he and B.T. were playing and fighting when Ms. Gaines called them. T.J. provided that Ms. Gaines hit B.T. on the face, and that he, T.J., was hit on the arm with a ruler. CPI Smith was unable to substantiate abuse of T.J. because there were no physical indicators on T.J. at the time of the interview. CPI Smith and Tiffani Brown, a DCF child care regulation counselor and licensing counselor, returned to the Academy when it reopened on December 28, 2018, to investigate the child abuse allegations. Ms. Gaines was not present, but the DCF employees spoke with Danita Gaines, who said Ms. Gaines was on vacation and would return on January 2, 2019. The two DCF employees returned to the Academy in January 2019. When CPI Smith returned to the Academy, she interviewed two other alleged victims, twins A.J. and AK.J. AK.J., the male twin, provided that Ms. Gaines was mean, whips students on the arms and hands, and will make them stand by the wall with their hands raised over their heads. As a result of his interview at the Academy, AK.J. was asked to go to the CACB for a video- recorded interview. A.J., the female twin, stated that Ms. Gaines hit her (A.J.) on her hands and arms with the ruler, and makes them (the children) stand beside the wall, “if they be bad.” CPI Smith asked that A.J. be taken to CACB for a video-recorded interview also. In AK.J.’s video-recorded interview, he provided the name of his favorite Academy teacher, but stated that he did not like Ms. Cloe (Ms. Gaines) because she was mean and “pops” people with a ruler. AK.J. said he was scared of Ms. Gaines; the ruler was hard; and it hurt when he was struck. During A.J.’s video-recorded interview, she recounted that Ms. Gaines and her daughter, “Ms. Danita,” were mean. A.J. also stated Ms. Gaines “whooped” her (A.J.) with a ruler and at times Ms. Gaines made all the children stand at the wall with their hands raised over their heads. On January 2, 2019, Counselor Brown, a DCF employee of nine years, observed Mr. Council walking outside the Academy with several students following him. Mr. Council does not have the required background screening approval to care for children in a daycare setting, and a background screened teacher was not present when Counselor Brown first observed Mr. Council. The background screened teacher appeared a minute or so later. During the hearing, Mr. Council provided that he was at the Academy daily, either dropping off or picking up his son. Mr. Council further testified that he performed various maintenance tasks that Ms. Gaines asked him to perform, such as changing filters for the air-conditioning vents and policing the playground, all while children were present. Mr. Council admitted that Ms. Gaines had told him (Mr. Council) to get the required background screening completed, but he had not done so.
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 revoking the license of CG Academy. DONE AND ENTERED this 4th day of June, 2019, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of June, 2019.
The Issue The issue is whether Respondent violated Florida Statutes and Rules concerning the delivery of childcare services and should receive fines and other penalties in accordance with Florida law. For the reasons set forth more fully below, Petitioner violated certain provisions of the Florida Statutes and Florida Administrative Code and should be subjected to fines and probation.
Findings Of Fact Respondent 3 in 1 Learning Center (the Center) is a child care facility licensed by the Department. A licensed child care facility has the responsibility for providing care to those children who have been placed in its care. Families in Duval County rely upon the Department to monitor child care facilities and ensure compliance with the Florida Statutes and Department's administrative rules. On March 15, 2010, Family Services Counselor Meike Rice received a complaint regarding the Center. The complaint alleged that the Center was transporting children in its 15-passenger van from Head Start to the Center without meeting the proper requirements. Transporting children in a van without the appropriate seat belts or child safety restraints is a dangerous activity that could result in death or serious injury. Ms. Rice visited the Center on March 15, 2010, and saw the van with the engine running and two staff members, Latrice Evans and Lisa Perkins, sitting in the front seat. Ms. Rice asked the staff to turn off the van. She then looked inside the van and observed young children without proper seat belt restraints or car seats. There were eight children in the van. The first row had one child; the second row had two children sharing a seat belt; the third row had two children; and the last row had three children, one of whom was crawling around, one of whom was in a car seat, and one of whom was on the bench seat. Ms. Rice spoke to the van driver, Latrice Evans, and the passenger, Lisa Perkins, whom she knew better as Arial Perkins, and told them of her concerns regarding the complaint and their transportation of the children. Ms. Rice documented on her complaint review that the driver lacked a driver's license, and that her personnel record did not have a copy of the certification to grant them approval to transport children. Moreover, the van had not been certified by the Department as appropriate for transporting children in a day care facility setting. Ms. Rice had been previously informed by Ms. Perkins that she was employed by the facility since December of 2009, but the staff was unable to provide any documentation of her employment history on the date of Ms. Rice's visit. Ms. Rice found that Ms. Perkins was missing Form 5131, the background screening and personnel file requirement form; verification of her employment for the past two years; documentation of an attestation of good moral character; and a fingerprint card for purposes of conducting the state and federal criminal checks. Ms. Perkins was employed by the Center from November 16, 2009, until January 2010, and was only visiting the Center on the date of Ms. Rice's visit. After observing the van, Ms. Rice entered the Center to conduct a count of the children and to review the Center's records. In the Center, Ms. Rice counted 19 children, putting the Center at its licensed capacity. However, when the eight children in the van were counted, the Center far exceeded its licensed capacity. Ms. Rice informed the Center's director, Ms. Wallace, that she needed to call parents to pick up their children in order for the Center to get back into compliance with its licensed capacity. Ms. Rice spent about two hours at the Center on her March 15, 2010, visit. Ms. Rice issued an Administrative Warning letter to the facility regarding its overall licensed capacity, room capacity, transportation logs, and lack of background screening documents. Ms. Rice returned to her office to address the matters she discovered while investigating the complaint. Ms. Rice and her supervisors determined the violation based upon the lack of proper child restraints for the young children in the van was a Class I violation from which a fine could ensue in the amount of a minimum of $100 to a maximum of $500. The Department decided to impose the maximum fine of $500 based on the number of children who were lacking the required safety restraints and the lack of seat belts. Violation 2 was based upon the employment history check of Ms. Perkins. Since this was the third Class II violation against the Center, having had previous violations on June 23, 2009, and November 10, 2009, the fine would be $60 per each day of violation. Ms. Rice found no documentation at the time of her inspection concerning Ms. Perkins' employment history, and therefore, made the beginning point for calculating the fine December 31, 2009, and culminating on her March 15, 2010, visit, for a total of 49 days. At $60 per day, the fine amounted to $2,940. Violation 3 was based on the lack of a fingerprint card for Ms. Perkins. This was the first occurrence of violating the standard, the Center having been previously cited on November 10, 2009, with a warning, so a flat $50 fine was imposed. Violation 4 concerned having the attestation of good moral character on hand for an employee. The Center was previously cited three times for this offense. This Class III violation was documented on June 23, 2009, November 10, 2009, and December 1, 2009. Using the same time period as she used for the other major fine, Ms. Rice issued a fine of $30 per day for 49 days, totaling $1,470. Ms. Rice received by fax a copy of the local background check, a copy of the fingerprint card, a copy of final disposition of a criminal case, and a copy of an FDLE report on March 16, 2010, concerning Ms. Perkins. This reinforced her belief that Ms. Perkins was employed by the Center. Ms. Rice worked closely with the Center's director, Ms. Wallace, on each visit to ensure the staff files were reviewed and contained the required information. Ms. Wallace, the director of the Center since November 29, 2009, provided at the hearing exhibits regarding Ms. Perkins, many of which were not previously provided by fax to Ms. Rice. These exhibits included: Ms. Perkins reference check form; her background screening and transfer request; her employment history; her Background Screening and Personnel File Requirements form; her CPR and first aid cards; her Application for Employment in a Child Care Facility; her Attestation of Good Moral Character; her Child Abuse and Neglect Reporting Requirements Acknowledgement; her Application for Employment; her FDLE records check; her Sheriff's Office record check; her fingerprint card; and her letter of discharge dated January 6, 2010. These documents demonstrate that Ms. Perkins was an employee at the Center until January 6, 2010, but not on the date of Ms. Rice's inspection, March 15, 2010. Charles Smith, the Owner of the Center, did not dispute the violations concerning the eight children in the van.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Department issue a final order imposing a fine of $500 against Respondents and placing 3 in 1 Childcare and Learning Center on probationary status for six months. DONE AND ENTERED this 15th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 November, 2010. COPIES FURNISHED: Charles Smith 3 in 1 Childcare and Learning Center 4025 Emerson Street Jacksonville, Florida 32207 Roger L. D. Williams, Esquire Department of Children and Family Services 5920 Arlington Expressway Jacksonville, Florida 32231 George H. Sheldon, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gerald B. Curington, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues are as follows: (1) whether Respondent violated Section 402.305(2), Florida Statutes (2005), and Florida Administrative Code Rule 65C-22.003(2) by failing to show that two staff members had enrolled in the introductory child care course within 90 days of employment; and if so, (2) what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the responsibility of enforcing Sections 402.301 through 402.319, Florida Statutes. At all times relevant here, Respondent has been licensed to operate a child care facility located at 10550 Deerwood Park Boulevard, Jacksonville, Florida (the facility.) Respondent's current license to operate the facility is effective May 6, 2005, through May 5, 2006. On April 22, 2003, Petitioner performed a renewal-of- licensure inspection at the facility. The inspection revealed that Respondent was not in compliance with the requirement that all staff members enroll in the introductory course in child care within 90 days of employment. The citation for non- compliance involved three of Respondent's staff members, including R.A., M.P., and G.S. On August 20, 2003, Petitioner performed a routine inspection at Respondent's facility. The inspection revealed that Respondent was in compliance with the requirement that all staff members enroll in the introductory course in child care within 90 days of employment. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on January 6, 2004. On April 20, 2004, Petitioner performed a renewal-of- licensure inspection at the facility. Once again the inspection revealed that Respondent failed to have documentation to show enrollment in the introductory course in child care for all staff employed for at least 90 days. On May 4, 2004, Petitioner performed a re-inspection of the facility. The inspection revealed that Respondent continued to be out of compliance with the requirement for staff members to enroll in the introductory child care course within 90 days of employment. The relevant portion of the May 4, 2004, re- inspection checklist contains the following comment by Petitioner's inspector: CA [corrective action] states the cited employees have not completed the required 40-hour training nor have they enrolled. The facility is working toward getting them enrolled. Staff worker G.S. was previously cited 04/22/03 for not enrolling in the required Observation and Screening module. CA received in this office on June 09, 2003, states G.S. registered 04/07/2003. On May 4, 2004, Petitioner issued a Notice of Intent to Impose Administrative Action against Respondent. The notice states that Petitioner intended to take such action if Respondent did not take corrective action within a certain time frame to ensure that all staff members enrolled in required training classes in a timely manner or if the same deficiencies continued. During the hearing, Respondent presented undocumented testimony that it was in compliance with staff training requirements during an inspection on August 18, 2004. On March 28, 2005, Petitioner performed a renewal-of- licensure inspection at the facility. During the inspection, Petitioner determined that Respondent did not have documentation to show enrollment in the introductory course in child care for two staff members, who had been employed for at least 90 days. Respondent hired I.N. on October 18, 2004. At the time of the March 28, 2005, inspection, I.N. had been working at the facility for approximately five months without enrolling in the appropriate training classes. Respondent hired Y.W. on November 29, 2004. At the time of the March 28, 2005, inspection, Y.W. had been working at the facility for approximately four months without enrolling in the appropriate training classes. Following the March 28, 2005, inspection, Petitioner required Respondent to provide documentation showing that I.N. and Y.W. were enrolled in the appropriate training classes. Respondent had until April 7, 2005, to provide Petitioner with such verification. On or about April 7, 2005, Respondent provided Petitioner with a Corrective Action Statement. Respondent also enclosed verification of I.N. and Y.W.'s compliance with training requirements. Petitioner's April 8, 2005, re-inspection of the facility confirmed that the two staff members were enrolled to begin the introductory child care training course. Accordingly, Respondent was in compliance with staff training requirements. On August 15, 2005, Petitioner performed a routine inspection of the facility. Respondent was in compliance with staff training requirements at that time. As of August 31, 2005, I.N. had completed the 40-hour introductory child care course. At all times material here, Respondent was aware that I.N. and Y.W. were not enrolled in the appropriate training classes. On more than one occasion, Respondent's administrative staff counseled with I.N. and Y.W. regarding the need for I.N. and Y.W. to enroll in the introductory child care course within 90 days of employment. At some point during the first 90 days of employment, Respondent sent I.N. and Y.W. a letter reminding them of the need to enroll in the introductory child care course. The letter advised I.N. and Y.W. that they might be subject to suspension from work if they did not meet the training requirements. However, Respondent never suspended I.N. or Y.W. because Respondent's administrators believed that the staff members were having difficulty registering for the course at Florida Community College Jacksonville (FCCJ) due to the unavailability of classes. There is no evidence to show the specific efforts that I.N. and Y.W. made to register for class. Respondent routinely advises its new staff members that they can register over the Internet for the introductory child care course with FCCJ. Respondent occasionally gives new staff members an opportunity to leave work during school hours so that they can go to FCCJ to register in person. In either event, efforts by new staff members to enroll in required training classes are sometimes unsuccessful due to the unavailability of classes. If timely enrollment in required classes is not possible in Jacksonville/Duval County, Florida, Respondent advises its new staff members of the opportunity to register for classes in adjacent counties. Neither Petitioner nor Respondent requires new teachers to verify their unsuccessful efforts to register for classes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order imposing an administrative fine in the amount of $50 on Respondent. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 26th day of September, 2005. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Thomas Blitch Owner/Operator Magellan Educational Services, Inc. Post Office Box 55109 Jacksonville, Florida 32255-1509 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tamayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner, Department of Children and Families’ (the Department), intended action to cite Respondent, Kids Village Early Learning Center, with a Class I violation and impose a fine in the amount of $500, is appropriate.
Findings Of Fact The Department is responsible for licensing and monitoring “child care facilities,” as that term is defined in section 402.302(2), Florida Statutes. Kids Village is a child care facility licensed by the Department. Kids Village is operated by Angela Mitchell and is located at 1000 West Tharpe Street, Suite 24, Tallahassee, Florida. Kids Village is located in a shopping area commonly referred to as a “strip mall,” a series of retail and office establishments located along a sidewalk with exterior entrances. A Dollar General store is located across the parking lot from the strip mall. On November 2, 2017, L.C., a two-year-old child enrolled at Kids Village, exited the facility unaccompanied and on his own volition. A stranger spotted the child in the parking lot near the Dollar General store and left her vehicle to pick up the child. A parent of a former student at Kids Village, who works in the strip mall, recognized L.C. and returned him to the facility. L.C. was absent from the facility for approximately four minutes. Teresa Walker, a teacher at Kids Village, who was working on the day of the incident, called and reported the incident to Ms. Mitchell, who was not working at the facility that day. Both Ms. Walker and Ms. Mitchell completed required incident reports and filed them with the Department. The incident was also the subject of an anonymous complaint received by the Department’s child abuse hotline the same day. Elizabeth Provost, a Department family services counselor, received both the incident reports and the complaint and began an investigation. As part of her investigation, Ms. Provost interviewed the child protective investigator who received the complaint from the abuse hotline, as well as Ms. Mitchell and Ms. Walker. Ms. Provost also viewed the facility’s security camera footage from the day of the incident. Based on her investigation, Ms. Provost determined that L.C.’s mother arrived at the facility on the morning of November 6, 2017, signed the child in at the reception desk, engaged in conversation with another employee of the facility, looked around the corner where a gate separates the reception area from a hallway leading to classrooms, then exited the facility. Afterward, security video shows L.C. exiting the facility without supervision. Based upon her investigation, Ms. Provost concluded that the facility was in violation of Florida Administrative Code Rule 65C-22.001(5), which reads, in pertinent part, as follows: Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of the child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children at all times. Ms. Provost also determined the violation was a Class I violation of Department rules, which is described as “the most serious in nature, [which] pose[s] an imminent threat to a child including abuse or neglect and which could or does result in death or serious harm to the health, safety or well- being of a child.” Fla. Admin. Code R. 65C-22.010(1)(d)1. At hearing, Ms. Mitchell admitted that, on November 2, 2016, L.C. was indeed faced with a serious or imminent threat to his safety which could have resulted in injury or death. As such, Ms. Mitchell admitted the Department properly determined the incident was a Class I violation of rule 65C-22.001(5). Ms. Mitchell’s contention was that Kids Village was not completely at fault, and that the penalty assessed should be reduced to account for the mother’s negligence. L.C. was known to the staff at Kids Village as a “runner.” He experienced separation anxiety and would frequently try to follow his mother when she left the facility after dropping him off for school. Ms. Mitchell testified that L.C.’s mother had been instructed to walk L.C. to his classroom and hand him over to his teacher before leaving the facility. Ms. Mitchell faults the mother for having signed the child in on the morning of the incident, but leaving the facility without walking the child all the way to his classroom. The evidence adduced at hearing did not support that version of the facts. Ms. Walker was the only witness who testified at the final hearing who was actually at the facility on the day in question. Her recollection of the events was clear and her testimony was credible. Ms. Walker works in the “baby room,” which is located to the left of the reception area past the reception desk. The gate separating the reception area from the hallway to the classrooms is to the right of the reception desk. Ms. Walker testified that after his mother signs L.C. and his older brother in on most mornings, L.C. comes to stay with her in the baby room. Ms. Walker gives him hugs and extra attention to help overcome his anxiety, then walks him to his classroom when he is calm. On the morning in question, L.C.’s mother came into the facility and signed the children in at the reception desk. Signing a child in requires both completing a physical sign-in sheet, and an electronic interface with a computer system. While his mother was signing in the children, L.C. went to the baby room where Ms. Walker greeted him and hugged him. L.C.’s mother finished signing in the children and talking to the staff, then she turned to find both children gone. The mother “hollered out” to Ms. Walker something to the effect of “Where did the children go?” Ms. Walker replied that they had gone “to the back.” L.C.’s mother walked over to the gate separating the reception area from the classroom hallway and peered around it down the hallway. She then exited the facility. Shortly thereafter, L.C. came back through the gate, into the reception area, and exited the facility through the front door unaccompanied. L.C. was alone outside the facility in a crowded parking lot of a retail strip mall for almost five minutes. He had crossed the parking lot during morning traffic to almost reach the Dollar General store. L.C. was spotted by a stranger who got out of their own vehicle to pick up the child. L.C. was recognized, and returned to the facility, by someone who worked at a nearby store. One does not need an overactive imagination to list the dangers that could have befallen the child during that brief time period. Kids Village has taken corrective action since the incident and installed a security system on the front door which requires a person to push a button on a panel next to the door in order to exit the facility. There was no testimony regarding any prior citations against Kids Village for violation of child care licensing standards. The investigative summary prepared by Ms. Provost states, “Kid’s Village has one prior with the Department earlier in 2016[;] there were no indicators of inadequate supervision.” Rule 65C-22.010(2)(e) provides appropriate disciplinary sanctions to be imposed for Class I violations, as follows: For the first and second violation of a Class I standard, the department shall, upon applying the factors in Section 402.310(1), F.S., issue an administrative complaint imposing a fine of not less than $100 nor more than $500 per day for each violation, and may impose other disciplinary sanctions in addition to the fine. Section 402.310(1)(b) provides: In determining the appropriate disciplinary action to be taken for a violation as provided in paragraph (a), the following factors shall be considered: The severity of the violation, including the probability that death or serious harm to the health or safety of any person will result or has resulted, the severity of the actual or potential harm, and the extent to which the provisions of ss. 401.301-402.319 have been violated. Actions taken by the licensee or registrant to correct the violation or remedy complaints. Any previous violations of the licensee or registrant. In determining to impose a $500 penalty, Ms. Provost considered the subsequent remedial action taken by Kids Village to prevent future escapes by children in its care. She also considered the serious threat of harm or death posed to L.C. due to inadequate supervision by Kids Village. Imposition of the maximum fine for the Class I violation is supported by the record in this case. Neither the statute nor the rule direct the Department to consider the negligence of persons other than the licensee in determining the appropriate penalty to be imposed for a Class I violation.
Recommendation Upon consideration of the evidence presented at final hearing, and based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Children and Families, finding Kids Village Early Learning Center committed a Class I violation of child care facility licensing standards and imposing a monetary sanction of $500. DONE AND ENTERED this 1st day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 1st day of August, 2017. COPIES FURNISHED: Lisa M. Eilertsen, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Camille Larson, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Angela Mitchell Kids Village Early Learning Center Suite 24 1000 West Tharpe Street Tallahassee, Florida 32303 (eServed) Michael Andrew Lee, Esquire Department of Children and Families 2383 Phillips Road, Room 231 Tallahassee, Florida 32308 (eServed) Mike Carroll, Secretary Department of Children and Families Building 1, Room 202 1317 Windwood Boulevard Tallahassee, Florida 32399-0700 (eServed) Rebecca Kapusta, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent, Department of Children and Families (Department), should grant the application filed by Cynthia McGuire-Moore to obtain a license to operate a child care facility through an entity known as Funhouse Learning Academy, LLC (Funhouse), contrary to the Department’s Notice of Intent to Deny Application, dated March 17, 2020.
Findings Of Fact The Department is the state agency charged with regulating licensed child care providers in the State of Florida. On March 13, 2020, Ms. McGuire-Moore submitted an “Application for a License to Operate a Child Care Facility” (Application) with the Department. The Application identified Funhouse as the name of the facility to appear on the license. In the Application, Ms. McGuire-Moore disclosed that she had previously owned, and served as director of, a licensed child care facility named “First Steps Learning Academy.” The Application does not reflect Ms. McGuire-Moore’s ownership of another licensed child care facility named “A Step Above Christian Academy.” However, the testimony and evidence presented established that Ms. McGuire-Moore previously owned another licensed child care facility named “A Step Above Christian Academy.” On March 17, 2020, the Department issued a “Notice of Intent to Deny Application,” which denied the Application, and stated: The denial is based on the following: As Owner/Director of A Step Above Christian Academy April 16, 2018 the license to operate A Step Above Christian Academy was revoked following the sixth Class II Violation for standard #3 Sufficient Ratio, in a two-year period. April 3, 2018 (Complaint Investigation) It was reported to the licensing office that Ms. McGuire- Moore had been providing childcare in her home but had asked parents to take their children back to the facility located at 1122 Dr. Mary McLeod Bethune Blvd this week as she would be on vacation. Upon responding to the facility address counselor did not find children in care. They were being cared for by an unscreened individual. Parents were contacted and children were sent home. December 22, 2017 A Cease and Desist letter was provided to Ms. McGuire-Moore while awaiting the final hearing as the facility was again found out of ratio for the sixth time on December 15, 2017 (Routine Inspection). The facility was [sic] also received a fine levied in the amount of $100.00. September 21, 2017 (Routine Inspection) They [sic] facility was found out of ratio for the fifth time and the revocation proceedings were initiated. July 21, 2016 (Complaint Investigation) The facility was found out of ratio for the fourth time and placed on a six-month probationary license and was fined $150.00 (two days out of ratio at $75.00 per day). June 16, 2016 (Complaint Investigation) The facility was found out of ratio for the third time and fined $60.00. Technical Assistance was provided. March 30, 2016 (Routine Inspection) The facility was found out of ratio for the second time and fined $50.00. Technical assistance was provided. December 17, 2015 (Routine Inspection) The facility was found out of ratio for the first time and counselor provided technical assistance. Due to the circumstances noted above we are unable to approve your application to obtain a Child Care Facility license. In Department of Children and Families v. A Step Above Christian Academy, LLC, d/b/a A Step Above Christian Academy, LLC, Case No. 17- 6871 (Fla. DOAH Mar. 21, 2018; Fla. DCF Apr. 16, 2018), ALJ Lawrence P. Stevenson recommended, after conducting a final hearing, that the Department revoke the license for A Step Above Christian Academy, LLC, based on the incidents (i.e., numerous ratio violations) referred to in the Department’s “Notice of Intent to Deny Application” and paragraph 4 above.1 The Department approved ALJ Stevenson’s recommendation in its Final Order. Ms. McGuire-Moore testified that A Step Above Christian Academy had been open for approximately three years before the revocation. She provided child care for infants through kindergarten. Prior to owning and operating A Step Above Christian Academy, she provided home daycare for eight years, and was also the interim director of and VPK teacher at Friendship Academy; another child care facility. Ms. McGuire-Moore testified that she made a “mistake” when operating A Step Above Christian Academy, and took responsibility for the ratio violations detailed in DOAH Case No. 17-6871 and the Notice of Intent to Deny Application. In the approximately two-and-a-half years since the revocation of the license of A Step Above Christian Academy, LLC, Ms. McGuire-Moore has worked for the Daytona Beach News Journal, delivering newspapers. Ms. McGuire-Moore testified that if granted another license, she would maintain the required ratio of children to staff by “do[ing] a better screening of my teachers that I hire ... Also, if teachers can’t be on time, then, I would just have to let them go and hire someone that can be on time.” Ms. Overly was the Department counselor assigned to investigate A Step Above Christian Academy from 2016-2017, and, in her current position as supervisor, reviewed the Application. Ms. Overly confirmed that the basis for the Notice of Intent to Deny Application was the numerous ratio violations involving A Step Above Christian Academy that led to its revocation. She also stated that, when assigned to investigate A Step Above Christian Academy, she found 52 total 1 A ratio violation occurs when the prescribed ratio of staff to children has not been met. Fla. Admin. Code R. 65C-22.001(4). violations—21 of which were Class II violations that included the ratio violations.2 Ms. Overly testified about various violations—other than ratio violations—that she found when investigating A Step Above Christian Academy, which included: Employing individuals who had not completed required background screening; Failing to maintain a clean environment, noting that during the final inspection before revocation, she discovered that five of the six toilets at A Step Above Christian Academy were backed up and not functioning, that a sink was backed up and had mold, that the ceiling was in disrepair, and that a fence in the back of the yard was “down” several months after a previous inspection; and Receiving a complaint from a parent with a child attending A Step Above Christian Academy who was informed by Ms. McGuire-Moore that she was going on vacation, but that a person named Ms. Lex would fill in for her; when Ms. Overly investigated the day after receiving this complaint, she learned that Ms. Lex had not completed required background screening or the required training to care for children. Ms. Overly also testified that she reviewed the history of another child care facility Ms. McGuire-Moore previously owned—Moore’s Christian Academy—and found that between 2006 through 2008, the Department conducted eight inspections and found five ratio violations. Ms. Overly stated that Ms. McGuire-Moore’s history of owning and operating child care facilities indicates a long and consistent pattern of ratio violations. 2 A Class II violation “is an incident of noncompliance with an individual Class II standard as described on CF-FSP Form 5316.” Fla. Admin. Code R. 65C-22.010(1)(e)2. “For the fifth and subsequent violation of the same Class II standard, the Department shall suspend, deny, or revoke the license, and shall also impose an administrative fine of $100.00 per day for each such violation.” Fla. Admin. Code R. 65C-22.010(2)(d)2.d. The undersigned finds that the Department established that Ms. McGuire-Moore’s history of owning and operating child care facilities includes repeated ratio violations, which culminated in the revocation of the license for A Step Above Christian Academy, as indicated in the Notice of Intent to Deny Application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Department of Children and Families enter a final order denying the application for a child care facility license that Ms. McGuire-Moore submitted for Funhouse Learning Academy, LLC. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 28th day of October, 2020. COPIES FURNISHED: Jane Almy-Loewinger, Esquire Department of Children and Families Suite 412 210 North Palmetto Avenue Daytona Beach, Florida 32114 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Steven R. Robinson, President Steven R. Robinson, P.A. Suite 300 533 Seabreeze Boulevard Daytona Beach, Florida 32118 (eServed) Javier Enriquez, General Counsel 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 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
