The Issue The issue in this matter is whether the Department of Children and Families should grant Petitioner’s application for a license to operate a childcare facility.
Findings Of Fact The Department is the state agency charged with regulating providers who are licensed or registered to provide childcare in the State in Florida. On May 26, 2016, Petitioner applied to the Department for a license to operate a childcare facility. Petitioner submitted her application using the Department’s prescribed form CF-FSP 5017 (“Form 5017”). See Fla. Admin. Code R. 65C-22.001(1)(a). Petitioner named her desired childcare facility “Little Einstein’s Early Education Center” (“Little Einstein’s”). On May 27, 2016, the Department issued a letter to Petitioner notifying her that her application was incomplete. Of relevance to this matter, the Department informed Petitioner that she needed to complete section 3 of Form 5017 (“Section 3”). She also needed to sign and date her application. Section 3 is entitled ATTESTATION and queries, “Has the owner, applicant, or director ever had a license denied, revoked, or suspended in any state or jurisdiction, been the subject of a disciplinary action, or been fined while employed in a child care facility?” Section 3 includes boxes for the applicant to mark either “Yes” or “No.” Section 3 then states, “If yes, please explain: (attach additional sheet(s) if necessary).” Form 5017 further instructs that “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.” In her initial Form 5017 Petitioner submitted to the Department on May 26, 2016, she placed an “X” in the “No” box in Section 3. Following the Department’s letter on May 27, 2016, Petitioner ventured to the Department’s Orlando office to request assistance to complete her Form 5017. There, Petitioner spoke with Ida Lewis, a licensing counselor for the Department. Ms. Lewis reviews applications for childcare facilities as part of her job responsibilities for the Department. At the final hearing, Ms. Lewis confirmed that she reviewed the unsigned Form 5017 with Petitioner. Ms. Lewis testified that she specifically pointed out Section 3 to Petitioner because it is common for applicants to incorrectly mark that section. Together, Petitioner and Ms. Lewis completed Section 3. Ms. Lewis testified that Petitioner had initially marked “No” to the Section 3 question regarding prior disciplinary action. Ms. Lewis advised Petitioner that if she had ever been the subject of disciplinary action involving other childcare facilities, then Petitioner must document that history on the application. Ms. Lewis also counseled Petitioner that if her initial response in Section 3 was not correct, then Petitioner needed to mark the “Yes” box and add the name(s) of the prior childcare facility(ies) where the disciplinary action took place. Following their discussion, Petitioner appears to have followed Ms. Lewis’ instructions. On her Form 5017, Petitioner drew a line through the “No” box and initialed her correction. She then placed an “X” in the “Yes” box. Next to the boxes, Petitioner wrote “Wiggles & Giggles Learning Center I, II, III” (“Wiggles & Giggles”). Ms. Lewis accepted Petitioner’s application, then handed a copy back to Petitioner. On June 6, 2016, Petitioner resubmitted her Form 5017 to the Department. However, Petitioner did not file the version of her application that she completed with Ms. Lewis which included a “Yes” answer in Section 3 and the name Wiggles & Giggles. Instead, Petitioner’s second Form 5017 simply had the “No” box marked and did not include Petitioner’s reference to Wiggles & Giggles. Upon receiving Petitioner’s Form 5017, the Department reviewed whether to grant her application. The Department discovered that Petitioner was the subject of several prior Administrative Complaints while she was the owner and operator of Wiggles & Giggles III, another childcare facility licensed in her name. Petitioner’s disciplinary history included the following2/: On August 20, 2014, the Department issued an Administrative Complaint against Petitioner alleging that she did not timely renew her childcare license. The Department fined Petitioner in the amount of $50. On March 9, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a Class I violation by leaving an unscreened individual alone to supervise children in her care. The Department fined Petitioner in the amount of $500. On October 1, 2015, the Department issued an Administrative Complaint against Petitioner alleging that she committed a background screening violation. The Department fined Petitioner in the amount of $60. Consequently, Petitioner’s submission of her revised Form 5017 marking “No” in Section 3 to the question of whether she had been the subject of a disciplinary action was not true.3/ On July 5, 2016, the Department issued a letter to Petitioner denying her application for a license to operate Little Einstein’s. Ms. Lewis prepared the denial letter. She explained that the Department denied Petitioner’s application based on two reasons. First, the Department found that Petitioner falsified her application by failing to disclose prior disciplinary actions from her operation of Wiggles & Giggles III. Second, the Department determined that Petitioner’s prior violations made her unfit to receive a license to operate another childcare facility. At the final hearing, Petitioner did not deny that she was the subject of several disciplinary actions by the Department while operating Wiggles & Giggles III. Petitioner also expressed that she now understands that she incorrectly marked Section 3 of Form 5017. Regarding her submission of the revised Form 5017 marking “No” in Section 3, Petitioner testified that she initially left Section 3 blank. She wanted advice from the Department on the proper manner in which to complete her application. Following her meeting with Ms. Lewis, however, Petitioner stated that she was still confused about which box to mark. Petitioner recalled that she and Ms. Lewis agreed that “No” was the appropriate response. Therefore, after she initially answered “Yes” in Section 3, she changed her response to “No” on the version of her Form 5017 she submitted to the Department on June 6, 2016. Based on the competent substantial evidence presented at the final hearing, the Department presented sufficient factual and legal grounds to deny Petitioner’s application. Further, Petitioner failed to meet her ultimate burden of establishing, by a preponderance of the evidence, that she is entitled to a license to operate a childcare facility.
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 denying Petitioner’s application for a license to operate a childcare facility. DONE AND ENTERED this 12th day of January, 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 12th day of January, 2017.
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.
