19-004975 Department Of Children And Families vs. Florine Pope, D/B/A Pope Family Day Care Home Status: Closed Recommended Order on Thursday, April 1, 2021.

Summary: The Department failed to prove by clear and convincing evidence that the child's injuries were inflicted by the operator of a family day care home or that the injuries occurred at the family day care home.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF C HILDREN A ND

F AMILIES ,

Petitioner,

vs. Case No. 19-4975

F LORINE P OPE , D/B/A P OPE F AMILY D AY

C ARE H OME ,

Respondent.

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted in this case on

February 24, 2021, via Zoom teleconferen ce, before Lawrence P. Stevenson, a

duly-designated Administrative Law Judge (“ALJ”) of the Division of

Administrative Hearings (“DOAH”).

A PPEARANCES

For Petitioner: Jane Almy-Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue, Suite 447

Daytona Beach, Florida 32114

For Respondent: Terrill L. Hill, Esquire

Terrill L. Hill, P.A.

702 North 19th Street, Suite E

Palatka, Florida 32177

S TATEMENT OF T HE I SSUES

The issues in this proceeding are wh ether Respondent, the owner/operator

of a family day care home, committed the violations alleged in the

Administrative Complaint and, if so, what is the appropriate sanction for

those violations.

P RELIMINARY S TATEMENT

On August 6, 2019, Petitioner, De partment of Children and Families

(“Petitioner” or “DCF”), issued a th ree-count Administrative Complaint

against Respondent, Florine Pope d/b/a Pope Family Day Care Home. All

three counts involved a single incident in which a child attending Ms. Pope’s

day care home was found to be injured. The Administrative Complaint

imposed a civil penalty of $500.00 and su spended the license of the day care

home. Ms. Pope timely contested the Administrative Complaint, which

resulted in this proceeding.

Count 1 of the Administrative Complaint alleged that Ms. Pope violated

section 2.3 (A), (B), and (F) of the Fa mily Day Care Home and Large Family

Child Care Home Handbook (the “Han dbook”), adopted by reference in

Florida Administrative Code Rule 65C -20.008(7). The cited provision sets

forth allowable and prohibited forms of discipline to be employed in day care

homes. If proven, this allegation woul d constitute a Class I violation of the

child care licensing standards se t forth in rule 65C-20.012(1)(e).

Count 2 of the Administrative Complaint alleged that Ms. Pope violated

section 6 (A) of the Handbook, wh ich sets forth the supervision

responsibilities of the operator of a da y care home. If proven, this allegation

would constitute a Class I violation.

Count 3 of the Administrative Complaint alleged that Ms. Pope violated

section 9.2 (A) of the Handbook, which pr ohibits “acts or om issions that meet

the definition of child abuse or neglect, ” and provides that failure to perform

the duties of a mandatory reporter constitutes a violation of the standards set

forth in sections 402.301 thro ugh 402.319, Florida Statutes. If proven, this

allegation would constitute a Class I violation.

On August 19, 2019, Respondent timely filed a handwritten notice that

she was “appealing” the Administrative Complaint. Through counsel,

Respondent filed an Amended Request for Administrative Hearing on

August 24, 2019. On September 17, 2019, the matter was re ferred to DOAH

for a formal evidentiary hearing.

The case was scheduled for hearing on November 13, 2019. The hearing

was convened as scheduled but was continued based on the parties’

agreement that more time was needed to complete discovery and allow the

hearing to proceed in an orderly fashion. Several status reports were filed as

the parties attempted to schedule depositions and complete discovery. At

length, the final hearing was scheduled for April 20, 2020, in the Putnam

County Courthouse in Palatka.

On March 13, 2020, the Florida Supr eme Court issued its first order

suspending grand jury proceedings, ju ry selection proceedings, and criminal

and civil jury trials. As the COVID- 19 pandemic progressed, it became

apparent that an in-person hearing at the Putnam County Courthouse or any

other public facility would not be po ssible on April 20, 2020. DOAH quickly

shifted the bulk of its caseload to Zoom hearings to minimize the exposure of

parties, witnesses, judges, and staff to the COVID-19 virus. However, the

parties to this proceeding were convinced that an in-person hearing was

essential to allow the undersigned to assess witness demeanor. The

scheduling of the hearing was pushed back several times as the parties

waited for the courthouse or some other acceptable facility to become

available for an in-person hearing. As pu blic facility closures continued to be

extended, the hearing was ultimately scheduled for February 24, 2021, via

Zoom teleconference, on which date it was convened and completed.

At the hearing, Petitioner presented the testimony of Susin Peterson, a

DCF Childcare Licensing Counselor; and of Teresa Jellison, a DCF Child

Safety Investigation Supervisor. Petitioner’s Exhibits 1 through 6 were

admitted into evidence. Respondent testified on her own behalf and presented

the testimony of Diane Jenkins, owner of Live Care Daycare Learning Center

in Palatka. Respondent offered no exhibits.

The one-volume Transcript of the he aring was filed at DOAH on March 3,

2021. The parties timely filed their Proposed Recommended Orders on

March 12, 2021.

The events at issue in this procee ding occurred on May 29, 2019. This

proceeding is governed by the law in effe ct at the time of the commission of

the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs. ,

115 So. 3d 441 (Fla. 5th DCA 2013). Accordin gly, all statutory and regulatory

references shall be to the 2019 ve rsions, unless otherwise noted.

F INDINGS OF F ACT

Based on the evidence adduced at hear ing, and the record as a whole, the

following Findings of Fact are made:

P ARTIES

1. DCF is authorized to regulate child care facilities pursuant to sections

402.301 through 402.319. Section 402.310 authorizes DCF to take

disciplinary action against child care fa cilities for violations of sections

402.301 through 402.319.

2. Respondent, Florine Pope, is the owner and operator of the Pope Family

Day Care Home in Palatka. Ms. Pope ha s been in the day care business for at

least 30 years.

U NDISPUTED F ACTS

3. A.S. was a three-year-old boy who attended Ms. Pope’s family day care

home with his twin brother. On the afternoon of May 29, 2019, the twins’

father, Eric Spell, picked up the boys at the day care. He took them to his car

but then walked back into the day care to ask Ms. Pope about bruises on A.S.

Ms. Pope told Mr. Spell that she had no idea how the child got bruised unless

it was from fighting with his twin brother. A.S. and his brother were barely

verbal and were unable to say how or by whom A.S. was injured.

F ACTS IN D ISPUTE

4. Ms. Pope disputes virtually every other aspect about DCF’s case, both

because she asserts her innocence and because the case is largely based on

hearsay documents. The written inve stigative summary written by Child

Protective Investigator (“CPI”) Storm Dixon was admitted into evidence only

as a hearsay document because Ms. Dixon did not testify. Likewise, the

interview report of the Child Protection Team (“CPT”) was admitted as a

hearsay document. DCF’s witness, Te resa Jellison, was present as an

observer during the CPT’s interview of the twins’ mother, Robin Durden, but

Ms. Jellison was not part of the CPT an d did not participate in writing the

report.

5. DCF’s involvement began with a re port that was phoned in on the

Florida Abuse Hotline. According to the Investigative Summary, the hotline

report stated:

[A.S.] was picked up from daycare on 5/29/19 from

the Pope Family Daycare. [A.S.] was observed to

have bruises on his face, neck, back, and shoulders

when the father picked [A.S.] up from the daycare.

It is believed that the injuries occurred at the

daycare. [A.S.] was taken to Putnam Regional

Medical Center and law enforcement was

contacted.

6. Teresa Jellison is a CPI Supervisor for DCF. Ms. Jellison testified that

when a hotline call is routed from Ta llahassee to the county DCF office, she

assigns a CPI to investigate. She firs t meets with the CPI to go over the

allegations and the history of the fac ility. They make a game plan for the

investigation, then the CPI goes out to investigate.

7. Ms. Jellison testified that in this case, the parents had taken A.S. to the

hospital. Because of the child’s injuries, DCF conducted an investigation of

the parents. DCF closed the case with “no indicators,” meaning that it

concluded the parents were not responsible for A.S.’s injuries.

8. Ms. Jellison stated that her office next received an institutional report

on the licensed day care that named Ms. Pope as the alleged perpetrator.

Ms. Jellison assigned CPI Storm Dixon to investigate the family day care

home. Law enforcement and the Jacksonville area CPT were also notified.

The child was transported to Jacksonv ille for an examination by the CPT.

9. Ms. Jellison testified that she wa s present when the CPT examined the

child’s injuries. Ms. Jellison testified that the CPT concluded the injuries,

especially a large bruise on the back of A.S.’s neck, were so deep and

extensive that another three-year-old child could not have inflicted them. The

bruising on the child’s back and face had loops suggestive of a cord. The

bruise on the back of the ne ck indicated blunt force.

10. Ms. Jellison was present when the CPT interviewed Ms. Durden, who

denied responsibility for A.S.’s injuries . Ms. Durden also told the CPT that

her cousin had removed her child from Ms. Pope’s family day care home

because of unexplained bruises on his legs.

11. Ms. Jellison conceded that ther e were no witnesses to support the

allegation that the bruises on A.S. were inflicted by Ms. Pope, but stated that

this was a “highly suspected plausible” explanation for A.S.’s injuries.

12. Ms. Jellison testified that she re viewed Ms. Pope’s licensure file and

found a 2013 investigative summary of an incident in which Ms. Pope

spanked a two-year-old girl with a rubber ruler on her bare bottom. DCF

concluded that the findings were ve rified when Ms. Pope admitted to

spanking the child. The spanking left some bruising that healed. Ms. Pope

was cited for a Level II violation of ina ppropriate discipline. No civil penalty

was imposed. DCF concluded that this was an isolated incident with low

concerns for the overall safety of the children in the facility.

13. The 2013 investigative summary referenced a felony child abuse case

brought against Ms. Pope in 1998 that wa s dismissed by the prosecutor with

no charges filed. Ms. Pope testified that the case involved bruises on a child’s

leg. However, the factual allegations ma de against Ms. Pope in 1998 were not

presented at the hearing.

14. Susin Peterson works in child care licensing for DCF and was the

counselor for Ms. Pope’s day care home. She testified that the complaint

about A.S.’s injuries was made on the hotline on Friday, May 31, 2019.

Ms. Peterson visited the day care home on the following Monday, June 3,

2019. She reviewed the allegations with Ms. Pope, who denied that she had

done anything to cause the child’s inju ries. Ms. Pope told Ms. Peterson that

A.S. and his twin brother played rough and the bruises must have come from

that. Ms. Peterson testified that the decision to charge Ms. Pope with a

failure to supervise was based on Ms. Po pe’s admission that she did not know

how A.S. came by his bruises.

15. Ms. Peterson noted that a child can get hurt even with adequate

supervision, but that the day care provider still should file an incident report.

Ms. Peterson stated that Ms. Pope’s fa ilure to make an incident report was

another factor in the decision to char ge her with inadequate supervision.

Regardless of Ms. Peterson’s testimony on this point, it must be noted that

the factual allegations of the Administrative Complaint do not include an

allegation that Ms. Pope failed to exerci se her duty to report A.S.’s injuries.

16. Ms. Peterson did not interview A.S.’s parents.

17. Photographs of the child’s injuri es taken by CPI Dixon were entered

into evidence. Ms. Peterson testified th at these photos gave “a pretty good

indication” of how the child was injure d. Based on the photographs and the

investigative summary, Ms. Peterson conc luded that a belt or an extension

cord was used to strike the child.

18. The photographs show looping superficial abrasions and bruises on the

child’s hairline, on his forehead near the right brow, on his right cheek, and

behind his right ear. Similar bruising appears on his right shoulder. One

large, deep bruise runs down th e middle of the back of his neck.

19. Ms. Peterson testified that she has known Ms. Pope for about four

years. She has visited Ms. Pope’s home several times for inspections, most

recently on March 19, 2019. The home is clean and has always passed

inspection.

20. Ms. Peterson opined, without substantiation, that Ms. Pope is a child

care provider who will go for long period s of time with no negative incidents

then lose self-control when a ch ild misbehaves and inflict abusive

punishment on the child. Because of the incident in this case, and Ms. Pope’s

history of previous incidents, Ms. Peters on asserted that Ms. Pope should not

be allowed to reopen her family day care home.

21. Ms. Jellison testified that she wa s the person who went out to the day

care home to shut it down after the investigation concluded that Ms. Pope

was responsible for the child’s injuries. She told Ms. Pope that she needed to

call the parents to come pick up thei r children. Ms. Jellison waited while

Ms. Pope made the calls and the parents arrived.

22. Ms. Jellison found it notable that the six children in the day care, all

ages two and three, sat at a table with their hands folded. They did not play

with toys. They either watched televisi on or sat without moving. They did not

get out of their chairs and did not speak. Ms. Jellison believed that the

children were afraid of Ms. Pope.

23. Ms. Jellison testified that while they waited for the parents to come,

she asked Ms. Pope about A.S.’s injuries . Ms. Pope told her that she did not

notice the bruises while the child was wi th her and could only think that A.S.

was hurt wrestling with his brother.

24. Ms. Pope testified that she has cared for A.S. and his twin brother

since they were infants and that she cared for their eight-year-old sister

before that. She potty trained both boys.

25. Ms. Pope testified that she had had a problem with the childrens’

father, Eric Spell, when she was ca ring for his daughter. The child had

disobeyed Ms. Pope’s admonition to stop running on the driveway. She

disobeyed, fell, and hurt herself. This angered Mr. Spell. Ms. Pope testified

that another day care provider called her and said that Mr. Spell was trying

to place the child in her facility because Ms. Pope was “f’ing up his daughter.”

Ms. Pope stated that she phoned Ms. Du rden and told her she did not like the

way Mr. Spell was talking about her, an d that Ms. Durden should take her

child elsewhere. Ms. Pope testified that she continued to keep the child only

because Ms. Durden tearfully begged her to.

26. Ms. Pope testified that she does not perform a physical examination on

every child when they arrive at the day care. If the child is potty trained and

goes to the bathroom without assistance , Ms. Pope does not inspect beneath

their clothes for bruising.

27. Ms. Pope testified that A.S. and his twin brother were about three

years old on May 29, 2019. She stated th at neither boy was verbal and that

she had spoken to Ms. Durden about th e boys being behind in their speech.

Ms. Durden told her that the boys were getting speech therapy. Ms. Pope was

skeptical because the boys were with her all day during the week.

28. Ms. Pope testified that the boys fo ught “like pit bulls.” She stated that

their fighting went beyond normal ro ughhousing. They would hit each other

with whatever they happened to have in their hands. In 30 years of operating

a day care, Ms. Pope had never seen two siblings fight as A.S. and his brother

did. The only way Ms. Pope could keep them from fighting was to separate

them.

29. Ms. Pope testified that she had told Ms. Durden that she could not

continue to keep the boys if their co nstant fighting persisted. Ms. Durden

would admonish the boys not to fight at the day care but it did little good.

Ms. Durden told Ms. Pope that the bo ys also fought at home. Mr. Spell’s

reaction when Ms. Pope complained about the fighting was to say, “boys will

be boys.”

30. Ms. Pope stated that when she made lunch in the kitchen for the

children, they engaged in free play in the day care area. The kitchen was just

off, and within sight, of the room us ed for the day care. Preparing the lunch

required Ms. Pope to momentarily leave the children out of her view, but she

could easily hear what they were doing.

31. On May 29, 2019, while she was preparing lunch in the kitchen,

Ms. Pope heard one of the children cry out. She stepped back into the day

care and saw A.S. and his brother figh ting. A.S. was lying on the floor. His

brother was on top of him holding a toy fire truck. Ms. Pope took the fire

truck away and separated the boys.

32. Ms. Pope testified that when Mr. Sp ell came to pick up the boys that

afternoon, she told him they had been fi ghting again. Mr. Spell did not react

to that information. He signed th e boys out and left the day care.

33. Ms. Pope looked out the window and saw Mr. Spell coming back to the

door with A.S. She began looking around, thinking that he was coming back

for something that he had accidentally left behind. Mr. Spell came in and

asked Ms. Pope how A.S. got the bruise on his face. She told him again that

the boys had been fighting. Ms. Pope said that Mr. Spell just mumbled to

himself and left.

34. Ms. Pope testified that she di d not see the bruise on A.S. until

Mr. Spell brought him back to the hous e. She stated that the children lie

down for a nap after lunch. They were just waking up when Mr. Spell arrived

to pick up his sons.

35. Ms. Pope testified that sometime later a policeman came to her home.

He told her that A.S. had been take n to the hospital and that he was

investigating the case. Ms. Pope told him that the boys had been fighting and

that when they fight, they fight hard.

36. She stated that the police later executed a search warrant at her

home. She cooperated fully. The officers took her two flyswatters and “a cord

like you would hook to the television fo r cable or something.” Ms. Pope told

them to take the toy fire truck because she surmised that to be what caused

A.S.’s injuries.

37. Ms. Pope related her version of the day Ms. Jellison came to close

down the day care. Ms. Pope denied that she forced the children to sit at the

table with their hands folded. Ms. Pope testified that she had the television

on to keep the children still while she called their parents. She stated that

the children were not used to strange people being at the day care and that

they could see that she was nervous. One of the children started crying and

Ms. Jellison picked him up.

38. Ms. Pope testified that she sel f-reported the 2013 incident. Ms. Pope

stated that the child’s mother had gi ven her permission to spank the child

with a ruler or paint stirrer as the moth er herself did at home. On the day in

question, Ms. Pope had repeatedly warned the child to stop throwing wooden

blocks. The spanking occurred after the child threw a block that hit another

child in the forehead. Ms. Pope testifie d that she called the child’s mother

and told her about the spanking. The mother did not seem to mind. Ms. Pope

told the truth to the DCF investigator. She did not spank the child again

after the incident.

39. Ms. Pope adamantly denied ever beating a child with an extension

cord or a belt. “Jesus, no. No. that’s not me. I can’t even imagine somebody

beating a child with an extension cord or a belt buckle of a belt.” She stated

that nothing ever goes smoothly in child care but that she has never become

so frustrated or angry that she wo uld beat a child in that manner.

40. Ms. Pope’s ordinary disciplinary method is to place a child in the

“think about” chair. She tells the child to sit there and think about what they

did. She later comes back and asks the child to tell her why they did it.

Ms. Pope stated that the usual repl y is a shrug or “I don’t know.”

41. Ms. Pope stated that she used the “think about” chair even with

nonverbal children. A child such as A.S. could understand what she was

saying and could shake his head when sh e asked if he was going to do the bad

behavior again.

42. Ms. Pope testified that she has been honest with DCF about

everything throughout its investigation. She cautions parents that she has to

go to the bathroom and has to make l unch in the kitchen and that she cannot

take the children into either place. It is her understanding of DCF’s

standards that she may be in the kitche n so long as she can see or hear the

children. She testified that she could always hear the children even if she

could not see them while making lunch.

43. Diane Jenkins, owner of Live Care Daycare Learning Center in the

Palatka Mall, testified on behalf of Ms . Pope. Ms. Jenkins testified that she

knows Ms. Pope well enough to wave at her when they are both picking up

children in their vans. Ms. Jenkins’s day care is licensed for 70 children, but

she started out by operating a family day care home similar to Ms. Pope’s.

44. Ms. Jenkins testified that home day cares are usually operated by a

single person who must leave the children somewhat unattended while

making lunch. The operator tries to get the children situated, ideally sitting

at a table. The operator then keeps th e children within sight and sound while

turning her back to prepare the lunch.

45. Ms. Jenkins testified that she pr ovided day care for A.S. and his

brother from June 24, 2019, until the COVID pandemic started in March

2020. She stated that the brothers are close but they cannot get along. They

are “real hyper” and competitive with each other. They like to play with each

other but they have anger issues. They ge t so angry with each other that they

actually growl. They cannot control their tempers.

46. Ms. Jenkins testified that for a time she kept the boys completely

separated, with different teachers. Sh e had conversations with their parents

about their behavior. Ms. Durden told Ms. Jenkins that she wanted the boys

together but Ms. Jenkins replied that wa s impossible because of the fighting.

U LTIMATE F INDINGS

47. In summary, it is found that the evidence was insufficient to establish

that A.S.’s injuries were inflicted by Ms. Pope.

48. Ms. Pope was the only witness with direct knowledge of the events of

May 29, 2019. The undersigned found he r to be a credible and truthful

witness. Ms. Pope admitted to span king a disobedient child in 2013 but

credibly denied ever losing her temper and beating a child in a manner that

would cause the bruising suffered by A.S. In more than 30 years of operating

a day care, Ms. Pope had a disciplinary record that included only the 2013

spanking and a 1998 abuse allegation, the specifics of which were not

detailed in the record, that wa s dropped by the prosecutor.

49. The undersigned finds it unlikely, but not impossible, that A.S.’s

injuries could have been caused by his brother in the short time that

Ms. Pope took her eyes off the children to prepare lunch. Even accepting that

the twins fought fiercely, it strains belie f that a three year old wielding only a

toy truck could inflict the deep bruises on A.S.’s neck or the looped bruises on

his face.

50. The other possibility is that the in juries did not occur at the day care

but elsewhere, such as at the child’s home. Neither parent testified at the

hearing. The record does not include affidavits or other hearsay statements

made directly by the parents. Rather , the only evidence presented by DCF

regarding the parents was hearsay within hearsay: the CPT’s narrative of its

interview with Ms. Durden. No member of the CPT was called as a witness to

testify about the contents of the CPT report.

51. Ms. Jellison testified that DCF in vestigated the parents and closed the

case with no indicators, but the record is devoid of any information about this

investigation. DCF clearly believed the pa rents, but DCF’s conclusion on that

point exists in an evidentiary void. No one who spoke directly to Mr. Spell or

Ms. Durden about these events testif ied at the hearing. No DCF employee

involved in the investigation of the parents testified.

52. Based on the evidence presented, one might conclude it was more

likely than not that the child was injure d at Ms. Pope’s family day care home.

However, DCF’s burden in this case is to prove the facts alleged in the

Administrative Complaint by clear and convincing evidence. The credible,

admissible evidence fell well short of that mark.

C ONCLUSIONS OF L AW

53. The Division of Administrative Hear ings has jurisdiction of the subject

matter of and the parties to this pr oceeding. §§ 120.569 and 120.57(1), Fla.

Stat.

54. DCF is the state agency granted the responsibility of licensing child

care facilities. §§ 402.301-319, Fla. Stat . DCF’s duties include responsibility

for imposing sanctions for violations of statutes or rules. § 402.310, Fla. Stat.

55. This is a proceeding in which DCF seeks to discipline Ms. Pope’s

license. Because disciplinary proceedings are considered to be penal in

nature, DCF is required to prove th e allegations in the Administrative

Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v.

Osborne Stern & Co., Inc. , 60 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987).

56. Clear and convincing evidence “requires more proof than a

‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a

reasonable doubt.’” In re Graziano , 696 So. 2d 744, 753 (Fla. 1997). The

Florida Supreme Court further enunciated the standard:

This intermediate level of proof entails both a

qualitative and quantitative standard. The

evidence must be credible; the memories of the

witnesses must be clear and without confusion; and

the sum total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear and convincing evid ence requires that the

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

remembered; the testimony must be precise and

lacking in confusion as to the facts in issue. The

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). “Although this standard of proof

may be met where the evidence is in co nflict, it seems to preclude evidence

that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 989

(Fla. 1st DCA 1991).

57. Sections 402.301 through 402.319 establish “statewide minimum

standards for the care and protection of children in child care facilities, to

ensure maintenance of these st andards, and to approve county

administration and enforcement to regulate conditions in such facilities

through a program of licensing .” § 402.301(1), Fla. Stat.

58. Pursuant to its authority under section 402.310, DCF has promulgated

chapter 65C-20 for the licensure and regulation of family day care and large

family day care homes. Rule 65C-20.012 sets forth the enforcement standards

for these facilities.

59. Section 402.310 and rule 65C-20.012 are penal in nature and must be

strictly construed, with any ambiguity construed against DCF. Penal statutes

must be construed in terms of their lit eral meaning, and words used by the

Legislature may not be expanded to broa den the application of such statutes.

Beckett v. Dep’t of Fin. Servs. , 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Latham

v. Fla. Comm’n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997).

60. The allegations set forth in the Administrative Complaint are those

upon which this proceeding is predicated. Trevisani v. Dep’t of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005); Cottrill v. Dep’t of Ins. , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996). Due proces s prohibits DCF from taking

disciplinary action against a licensee based on matters not specifically alleged

in the charging instruments, unless those matters have been tried by

consent. See Shore Vill. Prop. Owner’s Ass’n v. Dep’t of Envtl. Prot. , 824 So. 2d

208, 210 (Fla. 4th DCA 2002); Delk v. Dep’t of Prof’l Reg. , 595 So. 2d 966, 967

(Fla. 5th DCA 1992).

61. Count 1 of the Administrative Complaint seeks to discipline Ms. Pope

on charges that she violated section 2. 3 (A), (B), and (F ) of the Handbook,

which state, in relevant part:

A. Operators shall adopt a discipline policy

consistent with Section 402.305(12), F.S., including

standards that prohibit children from being

subjected to discipline which is severe, humiliating,

frightening, or associated with food, rest, or

toileting. Spanking or any other form of physical

punishment is prohibited.

B. All home operators, employees, substitutes, and

volunteers must comply with the home’s written

disciplinary and expulsion policies.

* * *

F. The following discipline techniques shall be

prohibited in the home:

1. The use of corporal punishment, including but

not limited to:

Hitting, spanking, shaking, slapping,

twisting, pulling, squeezing, or biting;

Demanding excessive physical exercise,

excessive rest, or strenuous or bizarre

postures;

Compelling a child to eat or have in

his/her mouth soap, food, spices, or

foreign substances;

Exposing a child to extreme

temperatures;

Rough or harsh handling of children,

including but not limited to: lifting or

jerking by one or both arms; pushing;

forcing or restricting movement; lifting or

moving by grasping clothing; covering a

child’s head.

* * *

7. Any abuse or maltreatment of a child

62. If proven, this allegation in Count 1 would constitute a Class I

violation of the child care licensing standards set forth in rule 65C-

20.012(1)(e).

63. The Administrative Complaint alleges that Ms. Pope violated the

quoted Handbook provisions by using a form of discipline in the home that

“included the use of spanking or othe r form of physical punishment” in

relation to the injuries suffered by A.S. on or about May 29, 2019. For the

reasons stated in the Findings of Fact above, DCF failed to carry its burden

of proving that Ms. Pope used physical punishment on A.S., or that the child’s

injuries were caused by Ms. Pope.

64. Count 2 of the Administrative Complaint alleged that Ms. Pope

violated section 6 (A) of the Handbook, which states:

A. The operator shall remain responsible for the

supervision of the children in care and capable of

responding to emergencies and the needs of the

children at all times. Child care personnel must

directly supervise children, both indoors and

outdoors, by sight and sound. Children must never

be left without child care personnel supervision

inside or outside the home, in a vehicle, or at a field

trip location by themselves.

65. If proven, this allegation in Count 2 would constitute a Class I

violation of the child care licensing standards set forth in rule 65C-

20.012(1)(e).

66. The Administrative Complaint alleges that Ms. Pope violated the

quoted Handbook provision by failing to adequately supervise the children.

Specifically, “On June 14, 2019, [1] a young boy A.S. somehow received bruises

while in the provider’s care to the head and neck area. It has been

determined that harm was caused at the hands of the provider, F.P. she is no

longer caring for the child [sic].” For the reasons stated in the Findings of

Fact above, DCF failed to carry its burd en of proving either that Ms. Pope

inflicted the injuries on A.S., or that the child’s injuries occurred at other

hands while he was in the care of Ms. Pope.

67. Count 3 of the Administrative Complaint alleged that Ms. Pope

violated section 9.2 (A) of the Handbook, which states:

A. Acts or omissions that meet the definition of

child abuse or neglect provided in Chapter 39.201,

F.S. or Chapter 827, F.S., constitute a violation of

the standards in Sect ions 402.301-.319, F.S.

Failure to perform the duties of a mandatory

reporter pursuant to Section 39.201, F.S.,

constitutes a violation of the standards in Sections

402.301-.319, F.S.

1 Counts 2 and 3 of the Administrative Complain t allege that Ms. Pope’s acts or omissions

regarding A.S. occurred on June 14, 2019. The record established that the confrontation

between Ms. Pope and Mr. Spell about A.S. ’s injuries occurred on May 29, 2019.

68. If proven, this allegation would constitute a Class I violation of the

child care licensing standards se t forth in rule 65C-20.012(1)(e).

69. The facts alleged to support the allegations of Count 3 are as follows:

The operator or substitute, while caring for

children, committed an act or omission that meets

the definition of child abuse or neglect provided. On

June 14, 2019 a child received bruises to the head,

neck, face, back, and shoulders. It has been

determined that harm was caused at the hands of

the provider.

70. For the reasons set forth in the Findings of Fact above, DCF failed to

carry its burden of proving that Ms. Pope committed any acts or omissions

that constitute child abuse under the statutory definitions.

71. It could be found that Ms. Pope failed to perform the duties of a

mandatory reporter by failing to report or even notice the bruises on A.S.

before Mr. Spell pointed them out to her. However, the Administrative

Complaint did not include any factual allegation regarding Ms. Pope’s failure

to report. Mere reference to a statutor y or rule provision is insufficient to

provide the licensee with notice of th e facts or conduct alleged to warrant

disciplinary action. “Predicating disciplinary action against a licensee on

conduct never alleged in an administrative complaint or some comparable

pleading violates the Administrative Procedure Act.” Cottrill , 685 So. 2d at

1372. Strictly construing the Administra tive Complaint against DCF, it is

concluded that DCF failed to est ablish that Ms. Pope committed the

violations alleged in Count 3.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the

undersigned hereby R ECOMMENDS that the Department of Children and

Families enter a final order dismissing the Administrative Complaint against

Florine Pope, d/b/a Pope Family Day Care Home.

D ONE A ND E NTERED this 1st day of April, 2021, in Tallahassee, Leon

County, Florida.

S

L AWRENCE P. S TEVENSON

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2021.

C OPIES F URNISHED :

Jane Almy-Loewinger, Esquire Terrill L. Hill, Esquire

Department of Children and Families Terrill L. Hill, P.A.

Suite 447 Suite E

210 North Palmetto Avenue 702 North 19th Street

Daytona Beach, Florida 32114 Palatka, Florida 32177

Javier A. Enriquez, General Counsel Lacey Kantor, Agency Clerk

Department of Children and Families Department of Children and Families

Building 2, Room 204F Building 2, Room 204Z

1317 Winewood Boulevard 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 Tallahassee, Florida 32399-0700

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency th at will issue the Final Order in this

case.