01-002603 Shannon R. Mccarthy, D/B/A Little Bears Day Care Center vs. Department Of Children And Family Services Status: Closed Recommended Order on Wednesday, October 31, 2001.

Summary: State failed to prove that Petitioner`s child care license should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANNON R. MCCARTHY, d/b/a )

LITTLE BEARS DAY CARE CENTER, )

)

Petitioner, )

vs. ) Case No. 01 - 2603

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was cond ucted in this

case on August 30, 2001, in Key Largo, Florida, before

Florence Snyder Rivas, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mark A. Dienstag, Esquire

21 S outheast First Avenue, Suite 800

Miami, Florida 33131

For Respondent: Rosemarie Rinaldi, Esquire

Department of Children and Families

401 Northwest Second Avenue

Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

At issue is whether Respondent’s license to operate a

child care center should be revoked.

PRELIMINARY STATEMENT

By letter dated April 2, 2001 , the Department of Children

and Familie s (the “Department”) notified Petitioner of its

intent to revoke child care license pursuant to Section

402.310, Florida Statutes (2000), for violation of minimum

child care standards.

Petitioner timely requested a Section 120.57(1), Florida

Statutes, he aring on the Department's proposed action. On

July 2, 2001, the matter was referred to the Division of

Administrative Hearings (DOAH) for the assignment of an

Administrative Law Judge to conduct the hearing.

The hearing was held on August 30, 2001. Petit ioner

testified on her own behalf and also presented the testimony

of Pastor Ralph Williams. Additionally, Petitioner offered

three exhibits into evidence.

The Department presented the testimony of Maricel Perez,

Stacy Cooper, Erin Decoste, Robin Kamrow , Kathryn Heal, and

Molly Fettig, and introduced 19 exhibits into evidence.

The transcript of the final hearing was filed on

September 19, 2001. A timely agreed - upon motion for

additional time to submit proposed recommended orders was

filed, and an enlarg ement of time was granted through

October 23, 2001.

Respondent timely filed a Proposed Recommended Order

which was carefully considered in the preparation of this

Recommended Order. Petitioner neither moved for nor received

an additional enlargement o f time. The undersigned had

reviewed the case and decided it on the merits when Petitioner

filed an untimely Proposed Recommended Order on October 30,

2001.

FINDINGS OF FACT

1. From February 2, 1999, until April of 2001, when they

sold their business ass ets to the Church of the Nazarene,

Petitioner Shanion 1 McCarthy (McCarthy) and her then - partner

Maricel Perez (Perez) owned and operated the Little Bears Day

Care Center (Little Bears). McCarthy and Perez were equal

partners in the purchase, ownership, an d operation of Little

Bears. Both had been employed at Little Bears prior to going

into business together.

2. McCarthy had been a competent, caring, day care

worker for over a decade. She did not shirk form unpleasant

obligations, such as the duty to re port child abuse, even when

it meant exposing herself to abuse and retaliation from the

accused abuser.

3. Within months of forming their partnership, McCarthy

and Perez began to seek a better facility for their business,

and began making plans to move Li ttle Bears to a new location.

Perez, however, began to plan a personal business strategy,

which involved opening the new center in her own name,

dissolving the partnership, and recruiting Little Bears

employees to work at the new center in competition wi th

McCarthy.

4. One of the employees whom Perez would later hire away

from Little Bears was Stacy Cooper (Cooper).

5. The Department's primary charge against McCarthy is

that on March 19, 2001, McCarthy was "not aware" that a three -

year - old child named Sergio had left Little Bears through a

bathroom door which exited to the outside after going to the

bathroom and removing his wet underwear and shorts.

6. It is undisputed that Sergio did leave the center and

was shortly thereafter found by Robin Kamrow (Kamrow), an

employee of a nearby auto - transmission shop.

7. Sergio was able to let himself out the bathroom door

because he had been granted permission to go to the bathroom,

without supervision, by Cooper.

8. At all times material to this incident, Coo per, and

not McCarthy, was the child care worker directly responsible

for Sergio's supervision. Cooper was eager to leave for lunch

with a co - worker, and did so without first verifying that

Sergio was back in class, and without advising McCarthy that

the child had been sent to the bathroom by himself.

9. The incident could have ended tragically, but did

not, due to Kamrow's willingness to attend to a little boy

walking alone with a dog.

10. The dog turned out to be owned by Sergio's uncle,

who lived di rectly behind the day care center. Upon exiting

to the outside from the Little Bears bathroom, Sergio

proceeded to his uncle's house and took the dog with the

intention of having the dog accompany him to his home, some

seven blocks away.

11. Apparently S ergio has not been taught to fear

strangers, for he willingly allowed Kamrow to put a rag on his

uncovered bottom, and to pick him up and carry him the rest of

the way home. Sergio was able to direct Kamrow to his

family's home, telling her where and wher e not to turn.

Kamrow released Sergio to his grandmother.

12. Rather than telephone the day care center or the

police, Sergio's grandmother went to the center to confront

the owners. By this time, McCarthy had discovered that Sergio

was missing and ha d called the police.

13. At the time of the incident, Sergio's family knew,

but had not informed Little Bears, that Sergio had a

propensity to run away.

14. Immediately after this incident, McCarthy had the

locks child proofed and installed a chain lin k fence, although

the law did not require that either of these things be done.

15. In its letter of April 2, 2001, the Department

further alleges that McCarthy asked a staff member to lie

about this incident, and that McCarthy told the Department

that Ser gio was under the supervision of a staff person who

was actually out of the center on a lunch break.

16. The only evidence that McCarthy asked a staffer to

lie was offered by Cooper. Cooper claimed that McCarthy asked

her to not tell investigators that S ergio had let the dog out

of his uncle's gate and that Sergio was riding a tricycle.

17. The undersigned rejects Cooper's testimony on this

matter as patently implausible. Cooper never claimed to have

personal knowledge of any aspect of Sergio's escape.

Moreover, there was never any evidence from any source that he

had a tricycle.

18. These silly fabrications, coupled with Cooper's

deceptive demeanor under oath and her financial stake in

permanently eliminating McCarthy as a competitor of Perez's

day c are center, all contribute to the undersigned's

conclusion that Cooper's testimony is unworthy of belief.

Cooper is the only witness who claims personal knowledge that

McCarthy's negligence was the proximate cause of Sergio's

escape. To the contrary, the evidence establishes that Cooper

lied under oath for the most obvious of reasons --- to shift

responsibility from herself to McCarthy.

19. The Department also alleges that Little Bears "has

had a history of problems." In support of this allegation,

the Department relies primarily upon three incidents.

20. On January 12, 1999, the Department found Little

Bears to be out of compliance with minimum child care

standards because the center was over capacity. However, on

that date, McCarthy was an employee, not an owner. There is

no evidence that McCarthy had any legal obligation or

authority to deny admittance to a child who had been duly

enrolled by McCarthy's employer.

21. On July 11 1999, the Department again cited Little

Bears for a violation of minim um child care standards because

the center had 26 children enrolled.

22. On this date, McCarthy and Perez were in an

ownership position and obliged to comply with state standards.

Based upon the square footage of Little Bears (as opposed to

the adult - ch ild ratios, which were in compliance) 23 was the

upper limit of enrollment. McCarthy acted promptly and worked

with the Department to correct the violation.

23. There is no evidence that this violation posed a

threat to the health or safety of any child in care. At least

one child was granted a Department waiver and permitted to

remain after the parent complained about being forced to go

elsewhere for child care. The Department did not seek to

punish this violation, but rather worked to accommodate the

needs of the families which relied on the center.

24. The third incident alleged as part of the "history

of problems" is an incident on February 22, 2000, in which

McCarthy "engaged in a physical altercation with her daughter

on the grounds of the Little Bears Day Care Center."

25. Although the Department alleged that McCarthy's

daughter, Chastity, was employed at the center at the time of

the incident, no evidence was offered to support that

allegation. Instead, the evidence revealed that Chastity,

an gry and upset that McCarthy had called police to report that

Chastity was at a motel, possibly engaging in illegal or

dangerous activities with her boyfriend, showed up

unannounced, uninvited, and greatly agitated, at Little Bears.

26. Chastity came to th e door and demanded to confront

her mother. McCarthy made every effort to keep the argument

away from the children. Chastity became violent and McCarthy

reacted in self - defense to protect herself and to restrain and

calm her daughter.

27. A police in vestigation revealed no wrongdoing by

McCarthy. The Department imposed a $100 fine for the incident

which McCarthy personally paid.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

29. The Department has the burden of proof in this

proceeding. The Department must show by clear and convincing

evidence that Petitioner committed the acts alleged in the

Administrative Complaint, an d the reasonableness of any

penalty to be imposed. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

30. The Department has the authority to revoke a child

care license for violation of minimum child care standards

pursuant to Section 402.310, Florida S tatutes:

(1)(a) The department or local licensing

agency may deny, suspend, or revoke a

license or impose an administrative fine

not to exceed $100 per violation, per day,

for the violation of any provision of ss.

402.301 - 402.319 or rules adopted

thereu nder. However, where the violation

could or does cause death or serious harm,

the department or local licensing agency

may impose an administrative fine, not to

exceed $500 per violation per day.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resul ted, the

severity of the actual or potential harm,

and the extent to which the provisions of

this part have been violated.

2. Actions taken by the licensee to

correct the violation or to remedy

complaints.

3. Any previous violations of the

licensee .

31. In addition, the Department contends that the

incidents set forth in its letter of April 2, 2001, constitute

violations of the following statutes and rules:

a. Section 402.302, Florida Statutes, which defines a

child care operator and owner as follows:

(11) "Operator" means any onsite person

ultimately responsible for the overall

operation of a child care facility, whether

or not he or she is the owner or

administrator of such facility.

(12) "Owner" means the person who is

licensed to o perate the child care

facility.

b. Section 402.305, Florida Statutes, sets the licensing

standards for child care facilities:

(1) LICENSING STANDARDS. -- The department

shall establish licensing standards that

each licensed child care facility must meet

r egardless of the origin or source of the

fees used to operate the facility or the

type of children served by the facility.

(a) The standards shall be designed to

address the following areas:

1. The health, sanitation, safety, and

adequate physical surroundings for all

children in child care.

2. The health and nutrition of all

children in child care.

3. The child development needs of all

children in child care.

* * *

(c) The minimum standards for child care

facilities shall be adopted in the rules of

the department and shall address the areas

delineated in this section. The

department, in adopting rules to establish

minimum standards for child care

facilities, shall recognize that different

age groups of children may require

different standards. The department may

adopt different minimum standards for

facilities that serve children in different

age groups, including school - age children.

c. The statutory licensing standards which have been

codified in Florida Administrative Code, Ru le 65C - 22,

specifically Rule 65C - 22.001 which outlines the requirements

for the issuance of a license as follows:

(2) License.

(a) A child care facility license is

issued in the name of the owner,

partnership, association, or corporation.

d. Rule 65C - 22.001, Florida Administrative Code, sets

forth minimum required space per child, as follows:

Physical Environment.

(3) Indoor Floor Space.

(a) A child care facility that held a

valid license on October 1, 1992, must have

a minimum of 20 square feet of u sable

indoor floor space for each child. A child

care facility that did not hold a valid

license on October 1, 1992, and seeks

regulatory approval to operate as a child

care facility, must have a minimum of 35

square feet of usable indoor floor space

f or each child.

e. Lastly, Rule 65C - 22.001, Florida Administrative Code,

sets forth the requirement for supervision:

(5) Supervision.

(a) Direct supervision means watching and

directing children's activities within the

same room or designated outdoor pl ay area

and responding to each child's need. Child

care personnel at a facility must be

assigned to provide direct supervision to a

specific group of children and be present

with that group of children at all times.

When caring for school age children, c hild

care personnel shall remain responsible for

the supervision of the children in care and

capable of responding to emergencies, and

are accountable for children at all times,

which includes when children are separated

from their groups.

(b) During na p time, supervision means

sufficient staff in close proximity, within

sight and hearing of all the children. All

other staff to meet the required staff - to -

children ratio shall be within the same

building on the same floor and be readily

accessible and ava ilable to be summoned to

ensure the safety of the children.

32. The Department has failed to establish that any of

the incidents described in the foregoing Findings of Fact,

singly or taken together, demonstrate either gross misconduct

and/or willful vi olation of the minimum child care standard

within the meaning of the statutes and rules charged.

33. The Department has failed to establish by clear and

convincing evidence that McCarthy was responsible for Sergio's

escape. Instead, the evidence establ ishes that Cooper was

appropriately assigned to look after him, and failed to

perform her duty.

34. It might be argued that it would be wise policy not

to permit a staffer to leave a day care center unless another

individual had performed a head count. B ut there is no

evidence that such a procedure is required either by law,

rule, nor by a standard of care in place at Little Bears.

35. Moreover, the Department expressly disclaimed that

its case is based upon a respondent superior theory. Instead,

the Department contended, but failed to prove, that McCarthy

was directly responsible for Sergio and neglected her duty to

supervise him.

36. The Department argues that the March 19, 2001

incident was so serious that the Department could have revoked

the lic ense without a history of prior violations at the

center, citing Coke v. Department of Children and Family

Services , 704 So. 2d 726 (Fla. 5th DCA 1998). Because the

evidence does not establish McCarthy's culpability for

Sergio's escape, arguably the other charges are moot.

37. However, Coke is readily distinguishable. There,

the court upheld the non - renewal of a child care license based

upon one incident of an unexplained injury to a child in day

care. Here, the injury has been explained, and the negligent

party identified. McCarthy's misplaced trust in Cooper,

coupled with the incidents of July 11, 1999, and February 22,

2000, do not constitute clear and convincing evidence that

McCarthy, after a long and unblemished career, should be

deemed unf it to work in child care.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department issue a final

order dismissing the charges against Petitioner, Shanion R.

McCarthy.

DONE AND ORDERED this 31st day of October, 2001, in

Tallahassee, Leon County, Florida.

________________________________

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of October, 2001.

ENDNOTE

1/ This is the correct spelling of Petitioner's first name .

The caption incorrectly uses the more traditional spelling.

COPIES FURNISHED:

Mark Dienstag, Esquire

21 Southeast First Avenue, Suite 800

Miami, Florida 33131

Rosemarie Rinaldi, Esquire

Department of Children and Families

401 Northwest Second A venue, Suite N - 1014

Miami, Florida 33128

Virginia A. Daire, Agency Clerk

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204B

Tallahassee, Florida 32399 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any

ex ceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.