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.
The Issue Whether the Petitioner correctly cited the Respondent with a Class I violation when the Respondent left an unscreened individual to supervise children in the Respondent’s care, and, if so, is the proper penalty an imposition of a $100.00 fine and termination of the Respondent’s Gold Seal designation.
Findings Of Fact KinderKids is a child care facility licensed by the Department as License No. C11MD1905. KinderKids is located at 26049 South Dixie Highway, Naranja, Florida 33032. Fatima Zaldiba ("Zaldiba") owns and operates KinderKids. KinderKids has been in operation since January 1, 2011. The Department awarded KinderKids a Gold Seal on July 11, 2012. KinderKids offers a full readiness program, infant care, and an aftercare program. On March 12, 2015, Zaldiba informed Raimy Coipel ("Coipel"), the pre-K age four teacher and afternoon director, that a volunteer was coming to the school. Zaldiba instructed Coipel to train and supervise the volunteer with the four-year- olds for two hours. Zaldiba introduced Coipel to the volunteer, Marilys Perez ("Perez"). Coipel took her 12 four-year-old children to the playground area with Perez around four thirty in the afternoon. Coipel left her 12 four-year-old children with Perez on the playground to go meet in the KinderKids' office with Yessenia Plata ("Plata"), the Department’s then family service counselor. Coipel asked Elsita Jalil ("Jalil"), a background- screened pre-K teacher, to supervise Perez and her class while she went to the office. Jalil agreed to watch the volunteer and Coipel’s class. Plata was assigned to conduct a complaint inspection at KinderKids regarding a child who allegedly cut his hand. Plata arrived at the school after four o’clock in the afternoon. Upon her arrival, Plata met with Coipel and Zaldiba regarding the abuse complaint. Plata briefed them about the complaint and took their statements regarding the complaint. Afterwards, Plata proceeded to walk the facility inspecting the center, going class-by-class checking the ratios of children. Plata took the ratios of the classes inside the building first. That same day Plata also checked the ratios of the children on the playground and Coipel escorted her around. Plata met Perez, the volunteer, who was outside on the playground watching Coipel’s four-year-old class. Plata questioned Perez about the abuse complaint. Jalil met Perez for the first time on March 12, 2015, when Coipel asked Jalil to supervise Perez and her classroom outside on the playground. Jalil never left Perez or the four- year-olds alone. Jalil remained on the playground at the same time with her three-year-old class supervising Perez and the four-year-old class the whole time Perez was with the children while Coipel was away.1/ After checking the ratios, Plata and Coipel returned to the KinderKids' office. Plata requested the employee files for Coipel and Perez, the two new individuals working at KinderKids who had not been there at the time of the last inspection, so that she could update their background screening and training. Zaldiba provided Plata Coipel's file, including the requested background screening. Zaldiba informed Plata that she did not have a background screening for Perez because she was on a trial period. Zaldiba even explained that she was not sure if she was going to keep her. Plata responded by telling Zaldiba that Perez had to leave the day care facility immediately because she did not have a background screening and that Coipel should take over the care of the four-year-olds. Zaldiba followed Plata's instructions and had Perez leave immediately. Plata informed Zaldiba that she was going to give her a Class I violation for having an unscreened person left with the children. Zaldiba explained to Plata that Perez was a volunteer she was trying out to determine if she was going to hire her at KinderKids. Zaldiba also tried to provide Plata with Perez’s Volunteer Acknowledgement Form, but Plata would not accept it.2/ Instead, Plata repeatedly requested a background screening document for Perez, which Zaldiba did not have for Perez. Since Plata had Zaldiba send Perez away from the facility, Plata was unable to verify Perez's position with her in person. Zaldiba tried to find Perez’s information and to make contact with Perez in front of Plata but was not able to do so. Plata requested a Department specialist in background screening to run Perez’s name and three individuals named Marilys Perez were found, but none of them looked like the person she had talked to on the playground earlier. Plata determined that no indicators existed for the abuse complaint and closed the case. However, Plata believed that Zaldiba came up with a story about Perez being a volunteer and that it was never proven to her, so she cited KinderKids with a Class I violation. Perez was never paid for her volunteer work. On March 17, 2015, the Department issued KinderKids an Administrative Complaint, citing the Respondent with a Class I violation of Standard #5, Supervision Rule, charging the facility with having Perez as an unscreened individual, left alone to supervise children in their care. The Administrative Complaint also terminated KinderKids Gold Seal designation. KinderKids contested the Administrative Complaint and requested a hearing.
The Issue Whether Respondent (1) allowed an unscreened employee to be alone with children, and (2) failed to have the proper background screening documentation in its employee files on two occasions; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is responsible for licensing and enforcing regulations to maintain the health, safety, and sanitary conditions at child care facilities. See § 402.305, Fla. Stat. All Aboard is a licensed child care facility (License ID number #C20LE6436) operating at 1918 South East Santa Barbara Place, Cape Coral, Florida. All Aboard has been operating for 25 years. Chemenda Sawyer was a family services counselor with the Department. In this position, Ms. Sawyer conducted inspections of licensed child care facilities, including All Aboard. On November 7, 2019, Ms. Sawyer conducted a routine inspection of the All Aboard facility. As part of the inspection, she reviewed All Aboard's employee files for proper documentation and background screening verification. At this time, Ms. Sawyer determined, All Aboard did not have 3 Exhibit R13 was not accepted into evidence. At the hearing, the parties were looking at different versions of the November 7 inspection report. Respondent was allowed to its version, Exhibit R13, after the hearing, but subject to a ruling on any objections. Respondent emailed Exhibit R13 to DOAH and the Department after the hearing. The Department objected on the grounds of authenticity and because the document had not been disclosed to it prior to the hearing. Due to the late disclosure of the exhibit, the unexplained hand- written comments on the document, and that the document seems to be incomplete (it is missing paragraph 41), the undersigned sustains the objection. appropriate background information for Isabella Escalona, one of its employees. Although Ms. Escalona had been cleared and found "eligible" on November 13, 2018, at another daycare, All Aboard was required to rescreen her upon hire because more than 90 days had elapsed between her last employment and employment with All Aboard in August 2019. Ms. Escalona's employment file did not contain a more recent background check. On the date of the inspection, Linda McClay was serving as the acting director because Anne Marie Walsh, the director, was not available. Ms. Sawyer spoke with Ms. McClay about Ms. Escalona's 90-day gap and the lack of a timely background screening report in her file. According to Ms. Sawyer, Ms. McClay did not know Ms. Escalona's screening status. Ms. Sawyer admitted at the hearing, however, that Ms. McClay was not the person at All Aboard who would have done the employee screenings. Ms. Escalona was not at All Aboard during the November 7 inspection. Therefore, Ms. McClay called Ms. Escalona to come into the daycare while Ms. Sawyer was present. Ms. Escalona gave All Aboard permission to run her fingerprints and conduct a background check. The resulting background screening report (dated November 13, 2019), indicated Ms. Escalona was eligible for providing child care services. In dispute is whether Ms. Escalona was alone with children at All Aboard prior to being re-screened and deemed eligible on November 13, 2019. The Department asserts Ms. Escalona was unscreened and alone with children in violation of the Department's rules based on Ms. Sawyer's investigation and a statement in the inspection report purportedly made by Ms. McClay. All Aboard denies Ms. Escalona was alone with any children prior to November 13, 2019, and specifically denies the statement attributed to Ms. McClay in the inspection report. Ms. Sawyer's conclusion that Ms. Escalona was alone with children was based on her understanding of the configuration of the daycare workers who were present during lunch.4 Based on this information she concluded Ms. Escalona had been alone with children. No one at All Aboard actually confirmed Ms. Escalona had been alone with children and nothing in Ms. Sawyer's testimony definitively establishes this fact. In fact, Ms. Sawyer never saw Ms. Escalona with children. Moreover, the statement Ms. Sawyer attributed to Ms. McClay does not establish Ms. Escalona was alone with children: We hired her [Ms. Escalona] from another school that she stated she was from. Based on the clearinghouse fingerprints, she was eligible for hire. So when we did the transfer, we did not realize she had a 90-day break in child care. So we were not aware she needed the rescreen feature. This statement does not mention staffing or children; rather, it only states that All Aboard was unaware that Ms. Escalona needed to be re- screened after being hired from another daycare. Even if true, this statement implies Ms. Escalona's fingerprints had been submitted for screening and she was deemed eligible – which was ultimately the case. Furthermore, Ms. McClay credibly denies making the statement in the unsigned inspection report.5 All Aboard's position is also consistent with the email dated November 14, 2019, between All Aboard and Ms. Sawyer following the inspection report which explains, "Isabel was not alone[.] 4 It is unclear whether Ms. Sawyer had a conversation with Ms. Walsh, Ms. McClay, or someone else at All Aboard about the staffing arrangements during lunchtime. It is also unclear whether Ms. Sawyer was testifying about the teacher's lunchtime or the children's lunchtime. 5 Although the inspection report was entered into evidence, its finality seems questionable because it is unsigned, unlike the follow-up re-inspection report dated January 28, 2020. No testimony was offered by Ms. Sawyer or any other Department witness regarding how the inspection reports were kept or deemed complete. Ms. Leticia was in the classroom with her. Isabel did have a screening[,but] it was incorrect because it was a transfer and not a re-screen." All Aboard's evidence establishes Ms. Escalona was assigned and scheduled to work with two other teachers in the 2-year-old and 3-year-old room. Ms. Walsh testified Ms. Escalona was always with another teacher in the room. Ms. Walsh also established there were two teachers in the room even during the teacher's lunchtime (the children's naptime). The undersigned finds the Department has not produced sufficient credible evidence to establish Ms. Escalona was alone with children. During the November 7 inspection, Ms. Sawyer also found that All Aboard did not have the proper documentation relating to background checks for two other staff members, Kimberly Harris and Laticia Gonzalez. All Aboard had previously been found to have insufficient documentation relating to the background check and clearance for a staff member, Karen Delgado, during a July 5, 2019, inspection. All three of these staff members were ultimately deemed eligible. All Aboard has been designated as a Gold Seal Quality Care provider, which allows it to receive supplemental funding. As noted below, this designation must be terminated upon the final assessment of a Class I violation.
Recommendation It is RECOMMENDED that the Department of Children and Families enter a final order finding Respondent guilty of two Class II violations for failing to have the Level 2 screening information for personnel, and imposing a $50.00 fine. DONE AND ENTERED this 23rd day of October, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2020. COPIES FURNISHED: George Gardner, Esquire Department of Children and Families Post Office Box 60085 Fort Myers, Florida 33906 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Ann Marie Walsh All Aboard Day Care, Inc. 1918 Santa Barbara Place Cape Coral, Florida 33990 (eServed) Javier A. Enriquez, Esquire Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Chad Poppell, Secretary The Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
