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 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.
Findings Of Fact Petitioner was incorporated on July 27, 1987. The original incorporators were Irene M. Kent and her husband, Jay Easterbrook. The original directors were Ms. Kent and Mr. Easterbrook. Ms. Kent and Mr. Easterbrook have remained the only directors of Petitioner. They are also the only shareholders. Since the formation of Petitioner, Ms. Kent has owned 51% of the shares and Mr. Easterbrook has owned 49% of the shares. Mr. Easterbrook is the president, and Ms. Kent is the vice- president of Petitioner. Petitioner is in the business of general contracting. Prior to deciding to form petitioner, Ms. Kent had been a schoolteacher for five years. She had had no prior significant experience in contracting and holds no contracting license or registration. Her educational background is in education. Mr. Easterbrook is a licensed general contractor and is qualifying agent of Petitioner. He is a civil engineer with a college degree in engineering. When Petitioner was incorporated, Mr. Easterbrook was employed full- time by National Seal Company as manager of the southeast region. A substantial portion of the work that he supervised was the installation of industrial plastic liners manufactured by National Seal Company. Petitioner's first job, which was for $20,000, was for the installation of a National Seal liner in Ellaville, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. Toward the end of the job, a welder who worked for National Seal assisted in the installation. However, Ms. Kent, not Mr. Easterbrook, performed the on-site supervision and inspections of the job, which was completed on October 26, 1987. Petitioner's second job, which was for less than $10,000, was for the installation of a National Seal liner in Bostwick, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. The job was performed shortly after the Ellaville job. Petitioner's third job, which was for $15,000, was for the installation of a National Seal liner in Hardee County, Florida. The contract for this job, which Petitioner learned of through Mr. Easterbrook's contacts, was entered into at about the same time as the Bostwick contract. Petitioner's only other job to date was as the general contractor responsible for the construction of 14 relocatable classrooms for various public schools in Seminole County, Florida. Ms. Kent learned of this job, which was for about $300,000, through an announcement in the local newspaper. This job was completed on March 31, 1988 and earned Petitioner a profit of $40,000. Mr. Easterbrook does all of the estimating for Petitioner in the preparation of its bids for contracts and interpretation of blueprints and specifications contained in invitations for bids. Ms. Kent assists in this part of the work by pricing materials. She also hires, supervises, and pays the subcontractors; purchases materials and equipment; and performs the bookkeeping, although Petitioner also employs an independent public accountant. Mr. Easterbrook quit his job with National Seal Company effective February 16, 1988, and took another week to close his office. He has since worked exclusively for Petitioner. Prior to his departure from National seal Company, Mr. Easterbrook devoted considerable time, although often by telephone only, rendering technical assistance to his wife with respect to the above- described jobs. In February, 1988, be spent 40-50 hours a week working for Petitioner where he has been on the payroll since January or February, 1988.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application of Petitioner for certification as a minority business enterprise. DONE and RECOMMENDED this 10th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0355 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted. 4-5. Rejected as unnecessary. 6 and 9. Adopted in substance. 7-8. Adopted. 10. Adopted, except that first sentence is rejected as legal argument and reference to licensure in eight other states is rejected as unnecessary. 11, 14 and 16. Rejected as unnecessary. 12-13, 15. Adopted. 17. Adopted, except that reference to Ms. Kent's work hours is rejected as unsupported by the greater weight of the evidence. 18-19. Adopted. 20, 24-25. Adopted in substance. 21. Rejected as legal argument. 22-23 and 26-27. Adopted. COPIES FURNISHED: Irene M. Kent Diversified Tech, Inc. 2296 Matthew Circle Deltona, Florida 32738 Deborah S. Rose, Esquire Department of General Services 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
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 Should the Gold Seal Quality Care designation of Respondent, Naples Preschool Academy, LLC (Academy), be terminated under the authority of section 402.281(4)(a), Florida Statutes?
Findings Of Fact The Parties DCF is the state agency charged with the responsibility of regulating child care facilities operating in the State of Florida. At all times material to the allegations of this case, the Academy operated a child care facility under Certificate No. C202O0107. The Academy's facility is located at 1275 Airport Road South, Naples, Florida. The Academy operates as a Gold Seal Quality Care Provider. Ms. Rihani is the Academy's owner. Ms. Rea was the Academy’s director at the time of the incident. Samantha McClain is the current director of the Academy. Events Giving Rise to this Proceeding In this case, DCF alleged the Academy failed to timely report an incident of possible child abuse as required by Florida law. On November 29, 2017, D.M., a minor child, was dropped off at the Academy by his father. At some time that morning, D.M. was observed to have a dark area under one eye and injuries on his backside. D.M.’s teacher saw the injuries and took D.M. to the director’s office. The Academy’s staff took photos of D.M., showing both his face with the dark area under one eye and multiple bruises and injuries to his backside. On November 29, 2017, at the end of the day, D.M. was allowed to go home with his father. Ms. Rea called the Abuse Hotline shortly after the Academy opened on November 30, 2017, to report the suspected abuse of D.M. DCF sent Ms. Fracek, a Child Protective Investigator, to the Academy on November 30, 2017. Ms. Fracek observed significant bruising to multiple parts of D.M.’s body. Ms. Fracek sheltered D.M. from his father on November 30, 2017. Ms. Rea maintained that she called the abuse hotline on November 29, 2017, but there is no record of the call. The Academy failed two routine inspections (December 21, 2016 and December 8, 2017), and a renewal inspection (April 3, 2017). All three inspections found the Academy to be out of compliance with licensing standards, and guilty of either Class II or Class III violations. The Academy admitted the violations and agreed to pay the financial penalty of $25.00 for the Class II and III violations. As a Gold Seal Quality Care provider, the Academy is subject to licensing inspections to ensure compliance with all DCF regulations. After investigating the abuse allegation, the DCF counselor determined that the Academy failed to timely report the incident of suspected child abuse. According to Florida Administrative Code Rule 65C-22.010, suspected child abuse is to be reported to the hotline without delay. The failure to do so constitutes a Class I violation of child care licensing standards.
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 Respondent, the Naples Preschool Academy, LLC’s Gold Seal Quality Care designation, and imposing a fine of $525.00. DONE AND ENTERED this 23rd day of August, 2018, 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 23rd day of August, 2018.
