The Issue The issue in this matter is whether the Department of Children and Families should revoke Respondent’s license to operate a child care facility.
Findings Of Fact The Department is the state agency charged with regulating providers that are licensed or registered to provide child care in the state of Florida. See § 402.305(1), Fla. Stat. Ms. Wright is the owner and operator of Little Learners. On January 9, 2017, Ms. Wright completed, signed, and submitted an application to the Department for Little Learners to operate as a child care facility in the state of Florida. Section E of the application is entitled “On-Site Director Information.” Section E instructs the applicant to identify the director of the child care facility. Section E further states that, “An On-site Director holds a Director Credential and is responsible for the day-to-day operation of the facility and is required to be on-site the majority of operating hours.” On her application, Ms. Wright wrote in the name of Shavol Spaulding as the director for Little Learners. Just above the applicant signature line, the application states: Falsification of application information is grounds for denial or revocation of the license to operate a child care facility. Your signature on this application indicates your understanding and compliance with this law. Based on the information contained in the application, the Department determined that Little Learners met all the requirements necessary to receive a license to operate a child care facility. Therefore, in January 2017, the Department issued a license to Little Learners. However, in or about May 2017, the Department received information that Ms. Spaulding never worked for Little Learners as its on-site director. Consequently, in June 2017, the Department initiated this action to revoke the license it issued to Little Learners in January 2017. The Department alleges that Ms. Wright misrepresented on the application that Little Learners had hired Ms. Spaulding to serve as its director. At the final hearing, the Department presented Christina Bryant, its Childcare Regulations Supervisor. In her role, Ms. Bryant reviews child care license applications. Ms. Bryant testified that in order for a child care facility to receive a license from the Department, the facility must employ a credentialed, on-site director.4 A director with the appropriate credentials assures the Department that someone who is trained in the required child care standards is overseeing the facility. Requiring the director to remain “on-site the majority of operating hours” ensures that the facility will provide the safest environment for the children who attend. The Department will not issue a license to a facility that does not identify a director or indicates that the director position is pending. Ms. Bryant relayed that around May 2017, the Department received a report from the Early Learning Coalition that Ms. Spaulding was not the director of Little Learners. Subsequently, on May 15, 2017, the Department obtained a letter signed by Ms. Spaulding confirming this fact. As a result, Ms. Bryant initiated an investigation to determine whether the Department appropriately issued a child care license to Little Learners. In the course of her investigation, Ms. Bryant contacted Ms. Wright. Ms. Wright expressed to Ms. Bryant that Ms. Spaulding was the director of her facility. However, Ms. Wright was not able to provide any documentation to Ms. Bryant verifying Ms. Spaulding’s employment as Little Learners’ director, such as personnel records, time sheets, or sign-in sheets. Consequently, Ms. Bryant concluded that Ms. Spaulding was not, in fact, the director of Little Learners. Ms. Bryant later learned that Ms. Spaulding was actually employed as the director of another child care facility. Ms. Bryant asserted that a credentialed child care director is required to be present at a single facility during a majority of the operating hours. Consequently, a director is not permitted to serve in such a capacity at more than one facility. Ms. Bryant conveyed that, rather than immediately initiating an action to revoke Petitioner’s license, the Department elected to allow Ms. Wright additional time to hire a director. Therefore, on May 19, 2017, the Department issued Little Learners a six-month, provisional license.5/ During this time period, Little Learners was allowed to operate without a designated director. Whitney Ricks, a Family Services Counselor, also testified for the Department. As part of her responsibilities, Ms. Ricks inspected the Little Learners facility in January and April 2017. Ms. Ricks reported that she met with Ms. Wright during both inspections. However, she never observed nor saw Ms. Spaulding at the facility. Ms. Ricks commented that Ms. Wright specifically represented to her that Ms. Spaulding did work at Little Learners, but was not present at the time of either inspection. Ms. Spaulding testified at the final hearing. Ms. Spaulding declared that she has never served as the director for Little Learners. Ms. Spaulding explained that, in October 2016, she applied for a director position with Ms. Wright. However, she never heard back regarding the job after her interview. Consequently, she never worked for Little Learners in any capacity. Ms. Spaulding confirmed that she wrote a statement in May 2017 informing the Department that she was not the director of Little Learners. Ms. Spaulding also stated that she currently works as the director of another child care facility, and did so on January 9, 2017, as well. Ms. Spaulding represented that she holds the required credentials to work as a child care director. She repeated Ms. Bryant’s testimony that a child care facility is required to employ a credentialed, on-site director in order to obtain a license to operate in the state of Florida. Ms. Spaulding also acknowledged that a child care director may only be employed by one facility at a time. Ms. Wright testified on behalf of Little Learners. Ms. Wright purchased the Little Learners center in October 2015. She was new to the child care business and has had to learn how to operate her facility as she gained experience. Ms. Wright insisted that, contrary to Ms. Spaulding’s testimony, she did hire her as Little Learners’ director. Ms. Wright further declared that she believed that Ms. Spaulding was serving as Little Learners’ director on January 9, 2017, when she applied for a child care license. Ms. Wright claimed that she did not find out that Ms. Spaulding was not working for Little Learners until three days after she submitted her application. It was then that the Early Learning Coalition notified her that Ms. Spaulding was employed as the director of another facility. Ms. Wright stated that she asked Ms. Spaulding to serve as Little Learners’ director within weeks after she opened Little Learners in October 2015.6/ Ms. Wright expressed that Ms. Spaulding started working for Little Learners shortly thereafter, and she saw Ms. Spaulding at her facility every day. Ms. Wright also asserted that Ms. Spaulding never told her that she was working for another child care facility. Ms. Wright further testified that she paid Ms. Spaulding $300 in cash every week since October 2015 for her director services. However, Ms. Wright did not retain (or produce for the Department) any employee documents, bank statements, pay stubs, tax forms, or other written records supporting her claim that Ms. Spaulding worked for Little Learners at any time between 2015-2017. Ms. Wright relayed that, after the Department contacted her, she confronted Ms. Spaulding about her work status. Ms. Wright attested that Ms. Spaulding apologized to her and told her that she had been caught working as the director of another child care business. Ms. Wright claimed that Ms. Spaulding offered to repay the money Ms. Wright had given her. Ms. Wright turned down Ms. Spaulding’s proposal because she did not believe that Ms. Spaulding could pay her back. Ms. Wright revealed that currently Little Learners has no director, no children to care for, and is essentially no longer operating. Ms. Wright explained that she attempted to hire another person as Little Learners’ director during the time she held the provisional license, but the person she sought out did not accept the job. In its Administrative Complaint, the Department alleges that Ms. Wright misrepresented the qualifications or credentials of Little Learner’s child care personnel (i.e., that Little Learners employed a director named Shavol Spaulding). The Department categorized Ms. Wright’s action as a Class I violation of section 402.319(1)(f)3. The Department seeks to revoke the license it issued to Little Learners in January 2017, as well as fine Little Learners in the amount of $500. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Ms. Wright misrepresented the fact that Little Learners had a credentialed, on-site director on the date she submitted her application to the Department. Accordingly, the Department met its burden of proving that Little Learners’ application for a child care license should be revoked under section 402.319.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order revoking Respondent’s license to operate a child care facility. DONE AND ENTERED this 7th day of December, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 December, 2017.
The Issue At issue in DOAH Case No. 03-3152 is whether the Department of Children and Family Services ("Department") established sufficient grounds for suspending the provisional child care license of S & S Achievers Learning Center ("S & S Achievers") for 30 days due to noncompliance with minimum licensing standards. At issue in DOAH Case No. 03-4240 is whether S & S Achievers' license to operate a child care facility should be renewed.
Findings Of Fact Based on the testimony and evidence received at the hearing, the following findings are made: The Department is the state agency responsible for licensing and regulating child care facilities. S & S Achievers, owned by Lavaine Shuler, was initially licensed in April 2001 to operate a child care facility in Apopka. The licensed capacity for the facility was 30 children. The Department routinely inspected the facility. On October 5, 2001, Milhem Ashy, a licensing counselor for the Department, conducted a routine inspection of the facility. Mr. Ashy's inspection checklist reported S & S Achievers for multiple violations of minimum licensing standards: failure to post a list of planned daily activities in a place accessible to parents; old, unsafe toys and long sticks on the outdoor playground; no adult at the facility with first aid or CPR training; failure to have physical examination and immunization records in children's files; and failure to complete and document the background screening of facility staff. Mr. Ashy discussed the deficiencies with Ms. Shuler, who also received a copy of the inspection checklist. On February 18, 2002, Mr. Ashy conducted another routine inspection of the S & S Achievers facility. Mr. Ashy's inspection checklist again reported S & S Achievers for multiple violations of minimum licensing standards. The most critical violation regarded the staff-to-children ratio. Among the children at S & S Achievers were some under one year of age. Florida Administrative Code Rule 65C-22.001(4)(b) provides that in groups of mixed ages where children under one year of age are included, the minimum ratio is one staff member for any four children. Mr. Ashy observed a ratio of one staff member for five children. After discussing the matter with Ms. Shuler, Mr. Ashy decided not to recommend a fine for this violation. On the February 18, 2002, inspection, Mr. Ashy found that the facility continued not to post a list of planned daily activities in a place accessible to parents. He found insufficient lighting in the infant room. On the outdoor playground, Mr. Ashy found that the frame of the swing set was not securely anchored. S & S Achievers continued its failure to have immunization records in children's files and to have documentation of staff's background screening. In April 2002, S & S Achievers' license was scheduled for renewal. On April 15, 2002, Mr. Ashy conducted a renewal inspection of the facility. In this inspection, Mr. Ashy found that the kitchen needed cleaning. He noted that the files still did not indicate sufficient credentialed staff at the facility, did not document employees' background screening, and did not contain students' immunization and health examination records. After discussing the noted deficiencies with Ms. Shuler, Mr. Ashy concluded that S & S Achievers was making progress toward full compliance. In light of the good working relationship between the Department and S & S Achievers, he recommended that the deficiencies cited in his report should not affect the facility's license renewal. On April 15, 2002, the Department issued an annual license to S & S Achievers. On June 26, 2002, Mr. Ashy conducted a routine inspection of the facility. He found the following elements of noncompliance with minimum standards: the infant teacher was observed caring for three infants, one six-year-old child and one four-year-old child, where the ratio requirements stated that she should have been caring for no more than four children; the second teacher was observed caring for 16 children, including one child under one year of age, three one-year-olds, four two-year-olds, one three-year-old, one four-year-old, and six children who were at least five years old; two children were observed in the rest room without any adult supervision; the facility's plan of scheduled activities was not posted in a place accessible to parents; the floors were stained and cluttered, tiles were peeling off the floors, and walls were peeling in the infant room; plastic and paper trash were observed on the playground; the swing set frame was not anchored; the facility could not document that it had conducted the monthly fire drills required by Department rules; the facility had no documentation that any staff member was trained in first aid or infant and child CPR. The facility continued to lack documentation regarding background screening and student health records. On his inspection checklist, Mr. Ashy noted that Ms. Shuler would be required to bring in the required documents for review at the Department's offices. By letter dated June 27, 2002, Patricia Richardson, supervisor of the Department's child care licensing office, notified S & S Achievers that the repeat violation of ratio and supervision requirements were being referred to the Department's legal counsel with a recommendation that a fine be imposed on S & S Achievers. Ms. Richardson further requested that S & S Achievers provide a "full and complete corrective action plan" addressing all the violations cited in the June 26, 2002, inspection checklist and that the plan be submitted no later than July 10, 2002. Ms. Shuler scheduled a meeting with Mr. Ashy for July 5, 2002. At that meeting, she provided some files regarding staff and children at the facility. On July 6, 2002, Ms. Shuler filed a plan of corrective action responsive to Ms. Richardson's letter of June 27, 2002. Nonetheless, on July 12, 2002, the Department filed an Administrative Complaint against S & S Achievers seeking a civil penalty, totaling $200.00 for the violations of staff-to-child ratio requirements and for the failure to supervise the children in the bathroom. S & S Achievers did not contest the imposition of the penalty. On July 16, 2002, Mr. Ashy conducted a follow-up inspection of S & S Achievers. He found that S & S Achievers was within the required staff-to-child ratios, but was in excess of its licensed capacity of 30 children. On August 30, 2002, Mr. Ashy visited the S & S Achievers facility and observed that there were 40 children at the facility. He also noted that the facility was again out of compliance with staff-to-child ratios and instructed S & S Achievers that it was required to comply with the Department's minimum standards for child care facilities. On October 10, 2002, Mr. Ashy conducted a routine inspection of the S & S Achievers facility. He found the following elements of noncompliance with minimum standards: the kitchen needed to be cleaned; the outdoor playground contained debris and rusted toys; the facility still had no documentation of monthly fire drills; the frame of the swing set remained unanchored; and staff training was still not documented. A follow-up inspection on October 31, 2002, indicated that the facility had corrected the items cited in the October 10, 2002, inspection. On December 30, 2002, Mr. Ashy conducted a surprise inspection. In this inspection, he looked only at the facility's staff-to-child ratios and supervision of children. The inspection found no violation of staff-to-child ratios and found that adult supervision of children was adequate. On March 17, 2003, Mr. Ashy conducted the annual license renewal inspection of S & S Achievers. He counted a total of 32 children under the supervision of S & S Achievers, either at the facility itself or on a field trip. Mr. Ashy found that the facility did not maintain a log for all children that it transported in its van, did not have documentation of an annual vehicle inspection, and did not have verification of insurance coverage for its van. The swing set frame was still not anchored. The facility did not have documentation showing that its staff persons had enrolled in or completed the required introductory course in child care or that staff had completed the required eight hours of annual in-service training. The facility still lacked documentation of criminal background screening for all staff. By letter dated March 20, 2003, Ms. Shuler clarified that S & S Achievers did not provide transportation to and from the facility for any of its students. Therefore, the deficiencies cited by Mr. Ashy related to transportation did not require correction. A follow-up inspection by Mr. Ashy on April 9, 2003, found that S & S Achievers had corrected the remaining items found deficient in the March 17, 2003, inspection. By letter dated April 10, 2003, Ms. Richardson informed Ms. Shuler that S & S Achievers would be issued a provisional license, pending completion of a corrective action plan to increase compliance with minimum standards. This provisional license was to be valid for a period of six months. S & S Achievers did not contest the issuance of the provisional license. By letter to Ms. Shuler dated May 19, 2003, Ms. Richardson noted the repeated violations of S & S Achievers regarding ratios and supervision, as well as the maintenance of records. She stated that these continuing violations were "repetitive, serious, and reflect a lack of organization in management and oversight of the facility." Ms. Richardson "strongly recommended" that Ms. Shuler enroll in a training course for child care facility owners. Ms. Richardson notified Ms. Shuler that her facility "will be inspected more frequently during this provisional period for increased compliance," and cautioned that insufficient progress toward compliance could lead to suspension of the license and could jeopardize future licensing for S & S Achievers. Donna Boatwright was a pediatric occupational therapist. From roughly April until June 2003, Ms. Boatwright visited S & S Achievers from one to three times per week to provide therapy to a one-year-old child with spina bifida. On June 4, 2004, Ms. Boatwright arrived at S & S Achievers to find her patient in a crib. The child was covered in vomit, "from his head to his butt, feet, on both sides, back and front," as if he had rolled around in it. Ms. Boatwright picked up the child and called for the staff person in the room to help her clean him. Ms. Boatwright noted that there was one adult in the room caring for ten small children, all of whom she described as "toddlers." She had seen similar ratios on previous visits. The staff person took the baby from Ms. Boatwright and left the room. For about five minutes, Ms. Boatwright was the only adult in the room with nine children. The staff person returned with the child after cleaning him. Ms. Boatwright took the child to another room and treated him. She saw that his clothes had been changed, but he still smelled strongly of vomit. After Ms. Boatwright was finished, a staff person returned the child to his crib. Ms. Boatwright did not believe the crib had been cleaned, because it still smelled of vomit. On June 4 or 5, 2003, Ms. Boatwright wrote a letter to Ms. Richardson to report this incident. In her letter, Ms. Boatwright added that in her visits to S & S Achievers, she had observed two toddlers playing in a toilet, dirty and broken toys within reach of small children, staff persons constantly yelling at children, and a general atmosphere of chaos. On or about June 5, 2003, Gwendolyn Butler, a child protective services investigator for the Department, went to S & S Achievers to investigate Ms. Boatwright's allegations. Ms. Butler counted 24 children in the facility. She stated that the youngest child was about three months old and the oldest was four or five years old. Ms. Butler noted that there were only two adults to supervise the 24 children spread among four or five rooms of the facility, meaning that some of the children were unsupervised. She was never able to see Ms. Boatwright's patient or to contact the child's parents because Ms. Shuler was unable to give her a correct phone number or address for the family. Ms. Butler closed the investigation with a finding of "some indicators" of physical injury and threatened harm to children and a "verified" finding of inadequate supervision. By letter dated June 25, 2003, Ms. Richardson notified Ms. Shuler of the Department's decision to suspend the license of S & S Achievers for a period of 30 days. On July 22, 2003, Ms. Shuler met with Mr. Ashy and initially informed him that she intended to comply with the suspension and make use of the 30-day period to bring her facility into compliance with the Department's minimum standards. However, later on the same day, Ms. Shuler wrote Mr. Ashy a note stating that she wished to confer with her attorney before making any decision. S & S Achievers challenged the suspension decision, and the facility remained open pending the results of its challenge. On August 28, 2003, Janice Nilles, a licensing counselor for the Department, conducted an inspection of the S & S Achievers facility. Ms. Nilles found the facility once more in violation of staff-to-child ratios. She found no daily plans posted. She noted several aspects of disrepair in the facility: exposed metal on a doorframe; a metal bracket holding some carpeting in place had come loose, exposing a cutting edge and causing a tripping hazard; three electrical outlets were uncovered; a nail protruded from the wood frame of the girls' bathroom door; detergents and bleach were within the reach of children in the boys' bathroom; the general storage of cleaning products did not prevent children's access to them; soap and paper towels or air dryers were not provided in the bathrooms; old wooden chairs created a splinter hazard; and lighting was insufficient. As to the outdoor playground, Ms. Nilles found debris and broken play equipment. The wooden gate to the playground was unaligned, with an exposed nail between the slats. The ground cover within the landing zones of swings and slides was not properly maintained. Wooden play blocks littered the playground, creating landing and tripping hazards. A protruding screw on the slide created a hazard. Ms. Nilles found that the facility did not provide developmentally appropriate toys for the ages of children in care and did not provide enough play equipment for the number of children under care at the facility. She found that linens, pillows, and blankets were not provided for napping children, and some of the bedding that was provided was dirty. The facility's first aid kit was incomplete. The facility still did not have on file the required background screenings for staff or the immunization information for children. On September 18, 2003, Ms. Nilles conducted an inspection for the renewal of S & S Achievers' provisional license. She found that the facility had "repaired" the loose carpet bracket by placing a rug over it. The splintered wooden chairs had not been replaced. Ms. Nilles observed cans of paint inside a storage cabinet in the infant room, with no secure lock for the cabinet. The first aid kit remained incomplete. The diapering changing area was not on an impermeable surface. The wooden blocks remained on the playground, and the broken play equipment had not been repaired or replaced. A nail protruded on the slide. The ground cover for the landing zones of the slides and swings remained insufficient. The facility did not have documentation showing that staff had enrolled in the introductory course in child care or had completed the required eight hours of in-service training. The facility had no documentation of criminal background screening for its employees. On October 14, 2003, one day before the scheduled expiration of the provisional license, Ms. Shuler applied to renew the license of S & S Achievers. Ms. Shuler hand-delivered the application to Ms. Richardson and told Ms. Richardson that every violation noted in the September 18, 2003, inspection had been corrected. Because of the number and frequency of S & S Achievers' violations, Ms. Richardson sent a team of licensing counselors to inspect the facility on October 16, 2003, in order to verify Ms. Shuler's claim to have corrected all of the noted deficiencies. The inspection revealed that some of the violations had been corrected, but that many others continued: the failure to document criminal background screening of employees; dangerous conditions on the playground; toxic cleaning supplies accessible to children; no soap or paper towels in the bathrooms; diaper changing area not on an impermeable surface; the protruding nail on the slide; incomplete first aid kit; and operating in excess of licensed capacity. By letter dated October 17, 2003, the Department notified Ms. Shuler that her license would not be renewed based upon continuing violations that were "repetitive, serious, and pose potential risk to children" under the care of S & S Achievers. At the hearing, Ms. Shuler testified at length on the various violations found by the Department's inspectors. She admitted to most of them, attempted to minimize others, and sought to leave the impression that Mr. Ashy and Ms. Richardson were of little assistance and seemed intent on closing her facility. In fact, the evidence establishes that the Department bent over backward to help Ms. Shuler bring her facility close enough to the minimum standards to justify keeping it open. The evidence leads to a finding that Ms. Shuler did not take the Department's authority seriously and that the Department was, if anything, too lenient in allowing her to avoid the consequences of repeated, serious violations of its minimum standards. Several parents testified at the hearing to the effect that even if all the alleged violations were true, they would nonetheless continue to place their children at S & S Achievers. This testimony is credited as honest, but it is irrelevant. To keep its license, S & S Achievers was bound to comply with the requirements of Florida Administrative Code Chapter 65C-22, even if parents were willing to waive those requirements. At the hearing, Ms. Shuler introduced considerable evidence that after receiving the October 17, 2003, denial letter, she finally corrected many of the deficiencies in the structure of her facility and in the playground. This evidence is irrelevant to the instant cases, though it should assist Ms. Shuler should she apply for a child care facility license in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order: Sustaining its initial decision to suspend the license of S & S Achievers for the reasons set forth in the Department's letter dated June 25, 2003; and Sustaining its initial decision to deny the application of S & S Achievers for a license to operate a child care facility for the reasons set forth in the Department's letter dated October 14, 2003, with the exception that S & S Achievers be found not to have violated the provisions of Florida Administrative Code Rule 65C-22.001(6), related to the transportation of children. DONE AND ENTERED this 9th day of February, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 9th day of February, 2005.
The Issue Whether Respondent, YouthFit by BodyZone Fitness, conducts activities that constitute "child care," so that it must obtain a child care facility license in order to conduct these activities.
Findings Of Fact The Parties Petitioner DCF is the state agency responsible, pursuant to chapter 402, Florida Statutes, for regulating providers of "child care," as that term is defined in section 402.302(1). Respondent YouthFit is a Florida limited liability company. It is located at, and its business address is, 2827 North Roosevelt Boulevard, Key West, Florida. YouthFit is owned and managed by Calvin Paquette. Paquette also owns BodyZone Fitness, LLC ("BodyZone"), a Florida limited liability company that operates a fitness facility located at 2740 North Roosevelt Boulevard, Key West, contiguous to YouthFit. Information Submitted in Questionnaire On July 13, 2018, Paquette submitted a Child Care Licensure Questionnaire ("Questionnaire") to DCF on behalf of YouthFit, requesting a determination whether YouthFit conducts "child care." The Questionnaire was admitted into evidence at the final hearing. The Questionnaire provided information regarding the nature and location of YouthFit's operation; the types of activities that YouthFit provides to children; the ages of the children participating in YouthFit's activities; the type of supervision that YouthFit provides to participants; and the payment/fee arrangements to participate in YouthFit's activities. According to the Questionnaire, YouthFit is a youth fitness program consisting of instructor-led classes offered to children ranging in age from preschool to high school. The classes identified in the Questionnaire were tumbling classes; strength, conditioning, and flexibility classes; and ninja classes. A YouthFit Class Pricing Schedule attached to the Questionnaire showed that, at the time the Questionnaire was submitted, YouthFit also offered "open gym" and "parents' night out" activities. Both of these activities entailed parents dropping children off at, and picking them up from, YouthFit. The Questionnaire stated that YouthFit offered classes from 9:00 a.m. to 9:00 p.m., seven days a week. Per the Questionnaire, participation in these classes is limited to one to two hours of class per day for each child. Attendance is not required, and the same children do not necessarily attend YouthFit's classes on a regular basis. The Questionnaire stated that parents are not required to remain on the YouthFit premises at all times, although they are permitted to do so. Parents may drop children off at the YouthFit facility to participate in classes and are expected to pick them up after class is over. The Questionnaire stated that children are not permitted to enter and leave the YouthFit classes or premises unless they have permission pursuant to prior arrangement or have adult supervision. Parents are required to sign their children in and out of the YouthFit classes and premises. According to the Questionnaire YouthFit supervises all children who are participating in its classes, including the children whose parents remain on the premises. Prepackaged snacks and drinks are offered to the participants of each of YouthFit's classes. Payment for participation in YouthFit's activities is made two ways: payment through adult membership at BodyZone Fitness, and payment of a drop-in fee for persons who are not members of BodyZone Fitness. YouthFit is not operated by a public or nonpublic school and is not located on a school site. YouthFit is not affiliated with a national non-profit organization created for the purpose of providing youth service and youth development. Based on the foregoing information, DCF determined that YouthFit provides "child care," as defined in section 402.302(1); therefore, it is required to be licensed as a "child care facility" pursuant to section 402.305, unless it falls within a statutory or rule exemption from the licensure requirement. Based on its review of the Questionnaire, DCF also determined that YouthFit did not qualify for any statutory or rule exemption from licensure as a child care facility. Accordingly, DCF notified Paquette of its decision that YouthFit was required to obtain a child care facility license in order to provide its youth fitness program activities. Facts Stated in YouthFit's Request for Hearing As noted above, Paquette timely requested a hearing challenging DCF's decision that YouthFit must obtain a child care facility license. In the letter requesting a hearing, Paquette provided additional information regarding the YouthFit fitness program. This letter was admitted into evidence as Petitioner's Exhibit C. According to the letter, YouthFit classes will be offered in BodyZone's expanded premises, which accommodate both YouthFit classes and adult fitness activities. Per the letter, children ages two through 18 may take the YouthFit classes. The letter clarified that a parent must be present at all times for children ages four and under, and YouthFit may require a parent to be present for children up to age five. The letter also clarified that each child would be limited to one class per day, which may range from 45 minutes to two hours in duration. The letter stated that YouthFit would not offer "child care" services, but, instead, would "operate no different [sic] than a local gymnastics center (or martial-arts dojo) offering tumbling classes (or ju-jitsu classes)." The letter explained that the "intent is fitness activities, not child care services." Other Evidence Presented at the Final Hearing DCF presented evidence at the final hearing that included screenshots of YouthFit's website, Facebook page, and Twitter account. At the time the screenshots were taken, YouthFit's Facebook page and Twitter account advertised a range of YouthFit classes and activities, including tumbling, Zumba kids, yoga kids, ninja class, boot camp, open gym, parents' night out, and day camps. Paquette testified that the hours associated with YouthFit's program recently have changed, so that classes and activities are now offered from 3:30 p.m. to 6:00 p.m. Additionally, YouthFit no longer offers parents' night out, open gym, or day camps. Paquette also testified that YouthFit no longer advertises its activities on Facebook and Twitter. However, at the time of the final hearing, he had not been able to access these accounts, so the advertisements had not been removed from the internet. Paquette testified that the sole means by which information on YouthFit's classes and activities is disseminated is by "word-of-mouth."
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 finding that Respondent, Youthfit by BodyZone Fitness, LLC, currently provides a program of classes and activities that constitute "child care," so that it is required to obtain a "child care facility" license to provide this program. DONE AND ENTERED this 6th day of March, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2019.
