07-001082 Department Of Children And Family Services vs. St. Michael`s Academy, Inc. Status: Closed Recommended Order on Thursday, October 11, 2007.

Summary: Petitioner failed to prove that Respondent was guilty of inadequate supervision in connection with an injury suffered at the facility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 07 - 1082

)

ST MICHAEL ' S ACADEMY, INC. , )

)

Respondent . )

_________________________________)

RECOMMENDED ORDER

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

June 6, 2007, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly - designated

Admini strative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Kimberly D. Coward, Esquire

Department of Children and

Family Services

401 Northwest Second Avenue, N - 1 014

Miami, Florida 33128

For Respondent: James H. Greason, Esquire

801 Brickell Avenue, Suite 900

Miami, Florida 33131

STATEMENT OF THE ISSUE S

1. Wheth er Respondent , i n November 2006, violated child

care facility licensing standards relating to supervision set

forth in Florida Administrative Code Rule 65C - 22.001(5) , as

alleged by the Department of Children and Family Services

(Department) in its December 15, 2006, letter to Respondent .

2. If so, whe ther Respondent should be fined $1,0 00.00 for

this violation , as proposed by the Department in the aforesaid

December 15, 2006, letter.

PRELIMINARY STATEMENT

By letter dated December 15, 2006, the Department provided

Respondent with the following informat ion:

You are hereby notified that the Department

of Children and Families, pursuant to

section 402.310 of the Florida Statutes has

imposed a civil penalty on St. Michael's

Academy in the amount of $1000.00. The

grounds for the imposition of this fine are

as follows:

GENERAL INFORMATION 65C - 22.001

1. Supervision 65C - 22.001(5)(a - d)

In 11/06 Child Care Licensing office

received a complaint that a child cared for

at St. Michael's Academy was severely

bitten. A written note was brought to our

office from the pediatrician stating

"injuries on cheek and back are consistent

with a human bite." Licensing staff held

investigation at day care where staff

confirmed child obtained marks at day care

at time of incident. Supervision was found

to be inadequate at center.

This was the second finding of inadequate

supervision leading to a Class I violation

in a 4 month period. [ 1 ]

The letter then went on to advise that Respondent had the

opportunity to "request an administrative hearing to contest the

decision." Re spondent subsequently requested such a hearing.

On March 6 , 2007, the matter was referred to DOAH for the

assignment of a DOAH administrative law judge to conduct the

hearing Respondent had requested and to "submit a Recommended

Order . "

On May 31, 2007, the parties filed a Pre - Hearing

Stipulation, which read, in pertinent part, as follows:

(a) Concise statement of controversy .

Respondent St. Michael's Academy, a licensed

child day - care facility, requested an

administrative hearing of a $1,000 fine

impo sed by Petitioner DCF predicated on

alleged inadequate supervision which caused

injury to a child in day care on

November 16, 2006.

(b) Parties' respective positions . St.

Michael's contests the factual predicate for

the penalty imposed in the latter inc ident.

St. Michael's acknowledges that the subject

child (an infant girl aged 16 months at the

time) was in day care when a mark was

discovered by staff on the child's face,

which was sustained after the child was

observed falling against the play equipme nt

in the facility. Staff immediately called

the mother, who arrived and examined the

child, as did staff, and no other injury was

received. Staff at no time observed another

child inflict the bite or in any way

interact with the child in such a way as t o

cause the mark. The child was at all times

supervised by the required number of staff.

DCF relies on Florida Administrative Code

65C - 22.001(5)(a), which notes that child

care personnel are accountable for the

children in their care at all times. The

C hild Care Licensing Department received a

complaint alleging that a child was severely

bitten at St. Michael's Academy on or about

November 16, 2006. Upon independent

investigations, both the licensing staff and

the protective investigator verified the

ch ild's injuries and found the cause to be a

direct result of inadequate supervision on

behalf of the child care personnel at St.

Michael's Academy.

* * *

(e) Admitted facts . St Michael's is a day

care facility subject to licen se and

regulation by DCF. The subject children

were in St. Michael's day care facility.

(f) Agreed issues of law . Regulations

applicable to day - care facilities such as

St. Michael's are set forth in §§ 402.301,

et seq., and Fla. Admin. Code Chapter 65C -

22.

(g) Issues of fact to be litigated . The

factual predicate for the fine, (1) the

cause of the injury seen on the child at

Noon on November 16, 2006, and (2) whether

there was inadequate supervision at the time

the child sustained that injury.

(h) Issues of law to be determined .

Propriety and amount of fines.

As noted above, the final hearing was held on June 6, 2007. 2

Six witnesses testified at the hearing: Linda Reiling, J. F.,

Meloni Fincher, Ian Flea ry, Cheryl Smith, and Dawnise Mobley.

In a ddition, nine exhibits (Petitioner's Exhibits A, B, C, and

E, and Respondent's Exhibits 1, 2, 3, 4, and 5) were offered and

received into evidence. Two exhibits, Petitioner's Exhibits F

and G, were rejected . 3

At the close of the taking of evidence, the u nder signed

established a deadline (2 0 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on September 10 , 2007.

The Department and Respondent filed their Proposed

Recommended Order s on September 28 , 2007 , and October 1, 2007,

respectively .

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are mad e:

1. At all times material to the instant case, including

Thursday, November 16, 2006 , Respondent operated a child care

facility located at 780 Fisherman Street in Opa Locka, Florida

(Facility) pursuant to a license issued by the Department, which

was ef fective June 10, 2006, through June 9, 2007.

2. On November 16, 2006, J. D. was one of nine children

between the ages of 12 and 23 months in the Facility's

Wobbler/Toddler class. Two properly credentialed Facility staff

members, Charnette Muldrow and Bar ry Thompson, were assigned to

oversee the children in the class that day .

3. Cheryl Smith is now, and was at all times material to

the instant c ase, including November 16, 2006 , the Facility's

office manager. Among her various responsibilities is to ma ke

sure that state - mandated staff - to - child ratio s are maintained in

each of the Facility's classrooms . To this end, she has placed

posters in the classrooms indicating what these "appropriate

ratios " are and that they "must be maintained at all times . " I n

addition, s he "do[es] counts [of staff and children in each

classroom] every hour on the hour ." She did these "counts" in

J. D.'s Wobbler/Toddler classroom on November 16, 2006, and each

time found the staff - to - child ratio to be "correct" (one staff

mem ber for every six children).

4 . Sometime around noon on November 16, 2006, a Facility

staff member brought J. D. to Ms. Smith's office . J. D. was not

crying, although she had a roundish red mark on her right cheek

that she had not had when her mother had dropped her off at the

Facility earlier that day. "It looked like ringworm to

[Ms. Smith] at first." There were no discernible "puncture

wounds," nor was there any blood. The staff member who had

brought J. D. to the office explained to Ms Smith that J . D. had

"bumped her face" on the "corner cabinet in the classroom."

5. After administering first - aid to J. D., Ms. Smith

attempted to contact J. D.'s mother, J. F., by telephone. She

was unable to reach J. F., but left a message at J. F.'s

workplace .

6. J. F. returned Ms. Smith's call at 12:54 p.m. and was

told by Ms. Smith that J. D. had "bumped her head on a ca binet

while playing, and she ha[d] a little bruise," but was "doing

fine."

7. J. F. left work at 4:30 p.m. and went directly to the

Facili ty to pick up J. D.

8. Upon arriving at the Facility, J. F. first went

"upstairs" to see Ms. Smith, who told her "about the incident

and what [had] happened ."

9. J. F. then went to retrieve J. D. (who was

"downstairs"). It did not appear to J. F., when she examined

the mark on J. D .'s cheek, that the mark was " from the cabinet."

In her opinion, it looked like J. D. had been bitten by

"somebody , " 4 a view that she expressed upon returning to

Ms. Smith 's office. Ms. Smith replied, "There's no biters in

he re. 5 Nobody bit J."

10. Before leaving the Facility with J. D., J. F. signed

an Accident/ Incident Report that Ms. Smith had filled out .

According to the completed report, on "11/16/06 at 12:00 noon,"

J. D. "was playing with . . . toys and bumped her fac e on the

corner cabinet," leaving a "red mark on the right side of her

face"; Mr. Thompson was a "[w]itness[] to [the]

[a]ccident/[i]ncident"; the injured area was treated with

"antiseptic spray[,] triple antibiotic ointment and a cold

compress"; and a mes sage was left with J. F. "to call school."

11. J. F. took J. D. directly from the Facility to the

Skylake office of Pediatric Associates , a pediatric group

practice to which J. D.'s regular pediatrician belonged.

J. D.'s regular pediatrician was unavai lable that evening , so

J. D. saw someone else , 6 who gave her a signed and dated

handwritten note, which read as follows:

To whom it may concern

The injuries on [J. D.'s] cheek and back are

consistent with a human bite. Please

investigate. [ 7 ]

Thank you .

12. J. F. reported to the local police department, as well

as to the Department, that J. D. had been injured at the

Facility.

13. J. F. provided this i nformation to Ian Fleary, the

Department's childcare licensing supervisor for the north area

of the s outheast zone , during a visit that she made to

Mr. Fleary's office late in the afternoon on Friday,

November 17, 2006 . J. F. brought J. D. with her to Mr. Fleary's

office and showed Mr. Flea ry the red mark on J. F.'s cheek, as

well as three other , less vi sible marks on J. F. (one on her

cheek,

beneath the red mark; one on her lower back; and one on her

right forearm). 8 Mr. Flea ry took photographs of all four marks. 9

14. Mr. Fle a ry asked one of his subordinates, Linda

Reiling, to "address [J. F.'s] compl aint as soon as possible."

15. Ms. Reiling, accompanied by Mr. Fleary, went to the

Facility on Monday, November 20, 2006 , to investigate J. F.'s

complaint . Ms. Reiling and Mr. Fleary interviewed Facility

staff members, including Ms. Muldrow and Mr. Thomp son. 10

Ms. Muldrow stated that she had gone to the restroom, having

asked another staff member "to watch the children" in her

absence, and first "saw the mark on [J. D.'s] cheek " upon her

return to the classroom . Mr. Thompson advised that he was "on

lunch break at the time the incident occurred. " 11 No one to whom

Ms. Reiling and Mr. Flea ry spoke at the Facility "admitted

seeing [J. D.] being bitten."

16. Based on her investigation, Ms. Reiling was unable to

determine , one way or another, whether the staf f - to - child ratio

in J. D.'s classroom was "correct" on "[t]he day of the

incident," but she did find that there was a "lack of

supervision." Ms. Reiling prepared a written complaint

documenting this finding and provided it to Ms. Smith.

17. Meloni Finche r, a child protective investigator with

the Department, also investigated the matter . She w as assign ed

the case on November 17, 2006 , after the incident had been

reported to the Florida Abuse Hotline.

18. Ms. Fincher began her investigation by visiti ng J. F.

and J. D. at their home that same day (November 17, 2006) , some

time after 4:00 p.m. During her visit, Ms. Fincher observed

that J. D. had "bruises to her cheek, her back, and [also] her

arm."

19. Ms. Fincher was unable to determine the nature or

cause of these injuries, so she made arrangements for J. D. to

be seen on November 21, 2006, by a University of Miami Child

Protection Team physician .

20. Ms. Fincher went to t he Facility on November 21, 2006 ,

but was unable to speak to any staff memb ers about the incident

at that time.

21. She returned to th e Faci lity on December 7, 2006 .

This time , she interviewed Ms. Muldrow, Mr. Thompson, Ms. Smith,

and Dawnise Mobley . 12 None of the interviewees claimed to be an

eyewitness to the incident, having personal knowledge of what

happened to J. D.

22. After receiving a copy of the Child Protection Team's

"medical report," which contained the team's determi nation that

J. D. had "bite marks at different stages [of] healing [which

were] consistent with ano ther child [having] bit[ ten] [her],"

Ms. Fincher, on December 12, 2006, "closed the case" f inding

"[v]erified indicators of inadequate supervision." 13

23. The evidence received a t the final hearing does not

allow the undersigned, applying a clear and co nvincing competent

evidence standard, to reach the same conclusion that Ms. Fincher

and Ms. Reiling did regarding the adequacy of the supervision

J. D. received at the Facility on November 16, 2006. While the

evidence is sufficient to support a finding t hat J. D. suffered

a single (red) mark on her right cheek while at the Facility

that day, it does not clearly and convincingly establish that

she was being in adequately supervised at the time. Inferring

that Respondent failed to provide J. D. with adequat e

supervision based on the mere fact that she received th is mark

while in Respondent's care is unwarranted, absent a clear and

convincing showing (enabling the undersigned to conclude, with a

firm belief and conviction and without hesitancy) that a toddler

would not receive such a mark while at a child care facility in

a classroom setting like J. D. was in unless there was a lack of

adequate supervision.

CONCLUSIONS OF LAW

24. DOAH has jurisdiction over the subject matter of this

proceeding and of the par ties hereto pursuant to Chapter 120,

Florida Statutes.

25. Section 402.305, Florida Statutes, requires the

Department to establish, by rule, licensing standards for child

care facilities in Florida , including standards "designed to

address . . . [t]he . . . safety . . . for all children in child

care . "

26. Pursuant to this mandate, the Department has adopted

Florida Administrative Code Rule 65C - 22.001 , which provides as

follows with respect to "[r]atios" and "[s]upervision":

(4) Ratios.

(a) The staf f - to - child ratio, as

established in Section 402.305(4), F.S ., [ 14 ]

is based on primary responsibility for the

direct supervision of children and applies

at all times while children ar e in care.

(b) Mixed Age Groups.

1. In groups of mixed age ranges, wher e

children under one (1) year of age are

included, one (1) staff member shall be

responsible for no more than four (4)

children of any age group, at all times.

2. In groups of mixed age ranges, where

children one (1) year of age but under two

(2) years o f age are included, one (1) staff

member shall be responsible for no more than

six (6) children o f any age group, at all

times.

(c) For every 20 children, a child care

facility must have one (1) credentialed

staff member pursuant to Section 402.305(3),

F .S.

(5) Supervision.

(a) Direct supervision means watching and

directing children's activities within the

same room or designated outdoor play area

and responding to the needs of each child.

Child care personnel at a facility must be

assigned to pro vide 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, child

care personnel shall remain responsible for

the supervision of the children in care,

capable of res ponding to emergencies and are

accountable for children at all times,

including when children ar e separated from

their groups.

(b) During nap time, supervision means

sufficient staff are in close proximity,

within sight and hearing, of all the

children. All other staff required to meet

the staff - to - child ratio shall be within the

same building on the same floor and be

readily accessible and available to be

summoned to ensure the safety of the

children. Nap time supervision, as

described in this section, does not include

supervision of children up to 24 months of

age, who must be dir ectly supervised at all

times.

(c) No person shall be an operator, owner,

or employee of a child care facility while

using or under the influence of narcotics,

alcohol, or o ther drugs that impair an

individual's ability to provide supervision

and safe ch ild care.

(d) Additi onal Supervision Requirements.

1. In addition to the number of staff

required to meet the staff - to - child ratio,

for the purpose of safety, one (1)

addi tional adult must be present on all

field trips away from the child care

facility to assist in providing direct

supervision.

2. If a child care facility uses a swimming

pool that exceeds three (3) feet in depth or

uses beach or lake areas for water

activ ities, the child care facility must

provide one (1) person with a certified

lifeguard certificate or equivalent unless a

certified lifeguard is on duty and present

when any children are in the swimming area.

In situations where the child care facility

pro vides a person with a certified lifeguard

certificate or equivalent, that person can

also serve as the additional adult to meet

the requirement in subparagraph (d)1.,

above.

3. A telephone or other means of instant

communication shall be available to sta ff

responsible for children during all field

trips. Cellular phones, two - way radio

devices, citizen band radios, and other

means of instant communication are

acceptable.

27. While operators of child care facilities , acting

through their staff , " at all t imes " are " responsible " and

"accountable" for the supervision of the children in their care,

they " are not insurers of the [children's] safety, nor are they

strictly liable for injuries to [the children]." La Petite

Academy v. Nassef by and through Knippe l , 674 So. 2d 181, 183

(Fla. 2d DCA 1996); see also Harrison v. Escambia County School

Board , 434 So. 2d 316, 319 (Fla. 1983) ("School boards, however,

are not insurers of students' safety."); Concepcion by and

through Concepcion v. Archdiocese of Miami by and through

McCarthy , 693 So. 2d 1103, 1105 (Fla. 3d DCA 1997 )("[ S] chool

officials and/or teachers are neither insurers of their

students' safety, nor are they strictly liable for any injuries

which may be sustained by the students ."); Ankers v. District

S chool Board of Pasco County , 406 So. 2d 72, 73 (Fla. 2 d DCA

1981)("A school board is not an insurer against a student being

injured.") ; and Benton v. School Board of Broward County , 386

So. 2d 831, 834 (Fla. 4th DCA 1980)(" [T]eachers and school

boards are neither insurers of the students' safety, nor are

they strictly liable for any injuries which may occur to

them.") . "[S]ome accidents occur without the attachment of

liability on others." Rodriguez v. Discovery Years, Inc. , 745

So. 2d 1148, 1149 (Fla. 3 d DCA 1999) .

28. Section 402.310, Florida Statutes, which provides, in

pertinent part, as follows, authorizes the Department to impose

penalties, including administrative fines, upon operators of

licensed child care facilities who violate the foregoing

"li censing standards " :

(1)(a) The department . . . may administer

any of the following disciplinary sanctions

for a violation of any provision of ss.

402.301 - 402.319, or the rules adopted

thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day.

However, if the violation could or does

cause death or serious harm, the

department . . . may impose an

administrative fine, not to exceed $500 per

violation per day in addition to or in lieu

of any other disciplinary action imposed

u nder this section.

2. Convert a license . . . to probation

status and require the licensee . . . to

comply with the terms of probation. . . .

3. Deny, suspend, or revoke a

license . . . .

(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 resulted, the s everity of the

actual or potential harm, and the extent to

which the provisions of ss. 402.301 - 402.319

have been violated.

2. Actions taken by the licensee . . . to

correct the violation or to remedy

complaints.

3. Any previous violations of the licens ee

or registrant.

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license . . . or place a licensee . . . on

probation status for violations of ss.

402.301 - 402.319.

2. Establ ish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301 - 402.319. [ 15 ] The

uniform system of procedures must provide

for the consistent application of

disciplinary actions across districts and a

progressively increas ing level of penalties

from predisciplinary actions, such as

efforts to assist licensees . . . to correct

the statutory or regulatory violations, and

to severe disciplinary sanctions for actions

that jeopardize the health and safety of

children, such as fo r the deliberate misuse

of medications. The department shall

implement this subparagraph on January 1,

2007, and the implementation is not

contingent upon a specific appropriation. [ 16 ]

(d) The disciplinary sanctions set forth in

this section apply to lic ensed child care

facilities . . . .

(2) When the department has reasonable

cause to believe that grounds exist for the

denial, suspension, or revocation of a

license or registration; the conversion of a

license or registration to probation status;

or the imposition of an administrative fine,

it shall determine the matter in accordance

with procedures prescribed in chapter

120. . . .

* * *

29. Under no circumstances may the Department impose (as

it is seeking to do in the inst ant case) a fine for a single day

violation that is in excess of $500.00, regardless of the

severity of the violation or the operator 's disciplinary record .

See Schiffman v. Department of Professional Regulation, Board of

Pharmacy , 581 So. 2d 1375, 1379 ( Fla. 1st DCA 1991)("An

administrative agency has only the authority that the

legislature has conferred it by statute."); Willner v.

Department of Professional Regulation, Board of Medicine , 563

So. 2d 805, 806 - 807 (Fla. 1st DCA 1990) (" We agree that the

$ 60 ,000 payment is a penalty. As a penalty, it can only be

upheld if the legislative authority relied upon by the agency is

sufficiently specific to indicate a clear legislative intent

that the agency have authority to exact the penalty

prescribed ." ); and Mc Farlin v. Department of Business

Regulation, Division of Pari - Mutuel Wagering , 405 So. 2d 255,

256 (Fla. 3d DCA 1981)("McFar lin was fined an aggregate of $ 400

for two separate violations, ostensibly pursuant to Florida

Administrative Code Rule 7E - 4.09(3), which purports to au thorize

the levy of a fine of $ 200 for each separate violation. The

authority for adopting the rule appears to be Section 550.02,

Florida Statutes (1979). However, a simple reading of the

statute fails to disclose the specific authori ty for the

Division to levy such a fine. Moreover, the argument of the

Division expressly ignores Article I, Section 18 of the

Declaration of Rights of the Florida Constitution which

provides: 'No administrative agency shall impose a sentence of

imprison ment, nor shall it impose any other penalty except as

provided by law.' It is apparent that insofar as Rule 7E -

4.09(3) sought to levy a fine, it was beyond the purview of the

agency to adopt or enforce it without specific legislative

authority. Consequen tly, that portion of the order which sought

to impose a $400 fine against McFarlin is vacated.") .

30. Nor may the Department punish a licensee twice for the

same offense. See Department of Transportation v. Career

Service Commission , 366 So. 2d 473, 47 4 (Fla. 1st DCA

1979)("Although the Commission may have inartfully used the term

'double jeopardy,' its reversal was based on sound reasoning.

D.O.T. not only lacked authority to discipline Woodard twice for

the same offense but its action was fundamental ly unfair. The

same offense may be a proper ground for either a suspension or a

dismissal but the statute and rules contemplate that these are

mutually exclusive disciplinary alternatives. Otherwise, an

agency could repeatedly punish an employee and the employee

would never be secure in his employment. . . . [H]aving

concluded its investigation and reached its decision as to the

disciplinary action it will administer to an employee, the

disciplinary action administered may not be increased at a later

dat e nor may an agency discipline an employee twice for the same

offense."). The Department , howev er, is authorized, pursuant to

S ubs ection (1)(b)3. of Section 402.310 , to take into

consideration "[a]ny previous violations of the licensee " in

determining wha t disciplinary action (within statutory limits)

it should take against the licensee for having committed a

previously unpunished offense. Cf. Tillman v. State , 609 So. 2d

1295, 1298 (Fla. 1992) (habitual offender statute which

" allow[ed] enhanced penalties for those defendants who me[t]

objective guidelines indicating recidivism" not violative of

constitutional protection against double jeopardy); Castaldi v.

U nited States , 783 F.2d 119, 123 n.3 (8th Cir. 1986) ("Petitioner

also contends that the District Co urt's consideration of his

prior criminal record in sentencing him violated several of his

constitutional rights (e.g ., Fifth Amendment double jeopardy and

Fourteenth Amendment equal protection and due process) since

Petitioner has fully completed the sent ences imposed on those

prior convictions. We dismiss this contention as totally

without merit. In sentencing, the district court may conduct a

broad inquiry into the defendant's background and generally is

unlimited as to the kind and source of informati on it may

consider."); and Ross v. State , 413 N.E.2d 252, 258 (Ind.

1980)(" It is clear that the appellant was not given double

punishment for two specific felonies, but that his history of

criminal activity, which dated from 1968, was but one factor the

tr ial court considered in sentencing, as is proper under the

statute. The habitual criminal proceeding and sentencing does

not violate the prohibition against double jeopardy.") .

31. If the Department makes a preliminary determination to

impose "disciplin ary sanctions " against the operator of a child

care facility , it must advise the operator of its intent to take

such action and of the operator 's opportunity to request an

administrative hearing pursuant to Chapter 120, Florida

Statutes, at which the opera tor will be able to make a

presentation in an attempt to change the D epartment' s mind. See

Florida League of Cities v. Administration Commission , 586 So.

2d 397, 413 (Fla. 1st DCA 1991) ("Until proceedings are had

satisfying [S]ection 120.57, or an opportu nity for them is

clearly offered and waived, there can be no agency action

affecting the substantial interests of a person."); Capeletti

Brothers, Inc. v. Department of General Services , 432 So. 2d

1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the

purpose of the [Section] 120.57 hearing. The rejection of bids

never became final agency action. As we have previously held,

APA hearing requirements are designed to give affected parties

an opportunity to change the agency's mind."); Capeletti

Brothers , Inc. v. Department of Transportation , 362 So. 2d 346,

348 (Fla. 1st DCA 1978)("[A]n agency must grant affected parties

a clear point of entry, within a specified time after some

recognizable event in investigatory or other free - form

proceedings, to forma l or informal proceedings under Section

120.57."); and Couch Construction Company, Inc. v. Department of

Transportation , 361 So. 2d 172, 176 (Fla. 1st DCA 1978)("APA

hearing requirements are designed to give affected parties an

opportunity to change the ag ency's mind.").

32. Where "there is a disputed issue of material fact

which formed the basis for the proposed final action," the

operator is entitled , upon request, to an evidentiary hearing

held in accordance with Section 120.569, Florida Statutes, and

S ection 120.57 (1) , Florida Statutes. See Florida Sugar Cane

League v. South Florida Water Management District , 617 So. 2d

1065, 1066 (Fla. 4th DCA 1993 ) ("Under section 120.57, a party

may petition for an administrative evidentiary hearing to

contest any p roposed final state agency action where the

proposed final agency action would affect that party's

substantial interest and where there is a disputed issue of

material fact which formed a basis for the proposed final agency

action.").

33. At any such hear ing , the Department bears the burden

of proving the accused child care facility operator 's guilt of

the violation(s) alleged . Proof greater than a mere

preponderance of the evidence must be presented. Clear and

convincing evidence of the operator 's guilt is required. See

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996)( "[A]n administrative fine deprives the

person fined of substantial rights in property. Admin istrative

fines . . . are generally punitive in nature. . . . Because the

imposition of administrative fines . . . are penal in nature and

implicate significant property rights, the extension of the

clear and convincing evidence standard to justify the im position

of such a fine is warranted." ); and § 120.57(1)(j), Fla. Stat.

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute . . . .").

34. Clear and convincing evidence is an "intermediate

standard," "requir[ing] 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). For proof to be considered "'clear and convincing' . . .

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 explicit and the witnesses must be

lacking in confusion as to the facts in issue. The evidence

must be of such 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, with approval,

from 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 conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electri c Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 989 (Fla. 1st DCA 1991).

35. In determining whether the Department has met its

burden of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific allegations of wro ngdoing

made in the charging instrument. Due process prohibits an

agency from taking penal action against a licensee based on

matters not specifically alleged in the charging instrument,

unless those matters have been tried by consent. See Trevisani

v. D epartment of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA

2005); Shore Village Property Owners' Association, Inc. v.

Department of Environmental Protection , 824 So. 2d 208, 210

(Fla. 4th DCA 2002); Lusskin v. Agency for Health Care

Administration , 731 S o. 2 d 67, 69 (Fla. 4th DCA 1999; and Ghani

v. Department of Health , 714 So. 2d 1113, 1115 (Fla. 1st DCA

1998) .

36. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the charging instrument]

to have been violated." De lk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992). In

deciding whether "the statute or rule claimed [in the charging

instrument] to have been violated" was in fact violated, as

alleged by the Department , if there is any reasonable doubt,

that doubt must be resolved in favor of the operator . See

Whitaker v. Department of Insurance and Treasurer , 680 So. 2d

528, 531 (Fla. 1st DCA 1996); Elmariah v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 164, 1 65

(Fla. 1st DCA 1990); and Lester v. Department of Professional

and Occupational Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA

1977).

37. If the violation alleged is proven by clear and

convincing evidence, the Department may then , in accordance with

th e provision s of Section 402.310(1)(b), Florida Statutes, take

final agency action penalizing the operator for its wrongdoing;

however, the "disciplinary sanction" imposed may be no more

severe than the "disciplinary sanction" the Department , in its

notice of proposed agency action, had indicated it intended to

impose . See Williams v. Turlington , 498 So. 2d 468 (Fla. 3 d DCA

1986)("Since Williams was not given notice by either the

complaint or any later proceedings that he was at risk of having

his license p ermanently revoked, the Commission's imposition of

the non - prayed - for relief of permanent revocation, even if

justified by the evidence, was error."); Department of Children

and Family Services v. Robinson , No. 97 - 1669, 1998 Fla. Div.

Adm. Hear. LEXIS 5471 *11 - 12 (Fla. DOAH February 5,

1998)(Recommended Order) ("In its Proposed Recommended Order, the

Department has recommended that Mr. Robinson's certification to

provide services under the Waiver Program be discontinued. This

proposed penalty is rejected be cause it was not the penalty

identified in the letter of February 5, 1997."); and Department

of Business and Professional Regulation, Construction Industry

Licensing Board v. Hufeld , No . 94 - 6781, 1995 Fla. Div. Adm.

Hear. LEXIS 4518 *8 (Fla. DOAH May 3, 19 95 ) (Recommended

Order) (" [R] espondents in license discipline cases are entitled

to notice of the penalty sought by the agency, and the penalty

imposed cannot be more severe than the most severe potential

penalty of which a respondent had notice.") (Recommend ed Order).

38. The charging instrument in the instant case (the

Department's December 15, 2006, letter to Respondent) alleges

that sometime " in 11/ 06 , " Respondent violated Florida

Administrative Code Rule 65C - 22.001 (5) by providing "inadequate

supervision " to a child (J. D.) who was injured at the Facility

when she was "severely bitten" on her cheek and back by another

(unnamed) person. The allegation is not that Respondent had an

insufficient number of staff supervising the children in J. D. 's

class r oom at the time of the alleged biting incident (a s counsel

for the Department made clear at hearing 17 ). Rather, the

Department is alleging that the staff who were in the classroom

did not properly discharge their supervisory responsibilities in

accordance with the req uirements of Florida Administrative Code

Rule 65C - 22.001(5).

39. The evidentiary record does not contain the clear and

convincing competent evidence necessary to support this

allegation.

40. Although t here was clear and convincing competent

evi dence adduced at hearing that J. D. left t he Facility on

November 16, 2006 , with a mark on her body that she had not had

when she had arrived at the Facility earlier that day

(specifically, the red mark on her right cheek depicted in three

of the photograp hs comprising Petitioner's Exhibit E) , 18 the

evidentiary record lacks sufficient evidence to enable the

undersigned to determine , with a firm belief and conviction and

without hesitancy, either what happened to J. D. to cause this

mark to appear on her chee k or, more importantly, whether she

was receiving adequate supervision at the time .

41. The Department and Respondent have each offered

different theories as to how J. D. got this mark on her cheek :

the Department contending that she was bitten by anot her child

at the F acility, with Respondent taking the position that she

fell against a piece of furniture in her classroom. Neither the

Department nor Respondent , though , presented any substantiating

eyewitness or expert medical testimony at hearing, and their

respective theories both remain unproven.

42. Respondent's failure to have s ubstantiated its theory

and affirmatively established the adequacy of the supervision it

provided J. D. is not fatal to its prevailing in this proceeding

(notwithstanding t he Department's suggestion to the contrary in

its Proposed Recommended Order) . That is because it was the

Department, not Respondent, that had the burden of proof at

hearing . I t was the Department's burden to prove, by clear and

con vincing competent evid ence , that on the day of the incident

described in the charging instrument , Respondent failed to

provide J. D. with the supervision required by Florida

Administrative Code Rule 65C - 22.001(5) , as the charging

instrument alleges. The Department 's evidentiar y presentation

at hearing fell short of meeting th is burden. The mere fact

that J. D. received a single mark of unknown cause on her cheek

while at the Facility on November 16, 2006, is not clear and

convincing proof t hat Respondent was derelict in its

re sponsibility to adequate ly supervis e her that day . 19 See La

Petite Academy , 674 So. 2d at 183 ("The fact that an injury

occurs in the presence of a teacher, without some evidence of

wrongdoing, does not establish negligent supervision. Teachers

and school s are not insurers of their students' safety.").

43. In view of the foregoing, the charge of "inadequate

supervision" made in the Department's December 15, 2006, letter

to Respondent should be di s missed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department issue a final order

dismissing the "inadequate supervision" charge made in its

December 15, 2006, letter to Respondent.

DONE AND ENTERED this 11 th day of October , 2007, in

Tallah assee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of October , 2007.

ENDNOTES

1 / In another, subsequent letter, the Department informed

Respondent it would be imposing a separate $200.00 fine for the

first alleged instance of "inadequate supervision," which the

Department claimed occurred in August 2006. As of the date of

the final hearing in this case, no final agency action had yet

been taken with r espect to this other matter. (In its Proposed

Recommended Order, however, Respondent asserts that "[t]he fine

for that [first] incident . . . . [subsequently] was dismissed

by [the Department].")

2 / The hearing was originally scheduled for May 7, 2007, but was

continued twice at the Department's request.

3 / Petitioner's Exhibit F, which was offered into evidence for

the stated purpose of showing that the Department could impose a

fine in excess of $500.00 for the alleged November 2006

violation describ ed in the Department's December 15, 2006,

letter to Respondent, was rejected because, as a matter of law,

the Department has no such authority. Under Section 402.310,

Florida Statutes, $500.00 is the maximum "per violation per day"

fine the Department may impose. Petitioner's Exhibit G was

rejected because it was not timely disclosed and its admission

would have unfairly prejudiced Respondent. See Gonzalez v.

Department of Insurance , 814 So. 2d 1226, 1227 (Fla. 3d DCA

2002) (administrative law judge erred in receiving into evidence

exhibit offered by agency that had not been disclosed to accused

until the "eve of the administrative hearing , " where admission

of exhibit was prejudicial to accused ).

4 / There is no record evidence that J. F. has any experie nce or

expertise in bite mark identification.

5 / No showing was made at hearing that there were any known

biters in J. D.'s class that day.

6 / The evidentiary record reveals neither the name nor the

credentials of the person J. D. saw. The person did not testify

at the final hearing.

7 / This note was offered and received into evidence at the final

hearing (as Petitioner's Exhibit B). To the extent offered to

prove what caused the "injuries" described therein, the note

constitutes hearsay evidence tha t would not admissible over

objection in a civil proceeding in Florida . See Visconti v.

Hollywood Rental Service , 580 So. 2d 197, 198 (Fla. 4th DCA

1991); Saul v. John D. and Catherine T. MacArthur Foundation ,

499 So. 2d 917, 919 - 20 (Fla. 4th DCA 1986); a nd Department of

Financial Services v. Ripa , No. 06 - 3421PL, 2007 Fla. Div. Adm.

Hear. LEXIS 292 n.8 *43 - 44 (Fla. DOAH May 16, 2007)(Recommended

Order). As such , it is insufficient, standing alone, to support

a finding of fact in this administrative procee ding as to the

cause of these "injuries." See Scott v. Department of

Professional Regulation , 603 So. 2d 519 (Fla. 1st DCA 1992)("The

only evidence which the appellee presented at the hearing was a

hearsay report which would not have been admissible over

objection in a civil action. . . . [T]his evidence was not

sufficient in itself to support the Board's findings."); Doran

v. Department of Health and Rehabilitative Services , 558 So. 2d

87, 88 (Fla. 1st DCA 1990)("The documents presented before the

hearin g officer were hearsay and did not come within any

recognized exception which would have made them admissible in a

civil action. . . . Because the only evidence presented by the

department to show that Doran held assets in excess of the

eligibility requir ements for receiving ICP benefits consisted of

uncorroborated hearsay evidence, we must reverse the hearing

officer's final order."); and Section 120.57(1)(c), Florida

Statutes ("Hearsay evidence may be used for the purpose of

sup plementing or explaining o ther evidence, but it shall not be

sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.").

8 / The evidence is insufficient to establish that any of these

three other marks were the result of anything th at happened at

the Facility on November 16, 2006.

9 / These photographs were offered and received into evidence at

the final hearing (as Petitioner's Exhibit E). The undersigned

is unable to discern from an examination of these photographs

the presence o f any obvious bite marks (with visible teeth

impressions, that even a lay person would be able to identify as

such).

10 / The statements given during the investigative process by

Ms. Muldrow and Mr. Thompson (neither of whom testified at the

final heari ng), which the Department offered into evidence

through the testimony of its witnesses, constitute party

admissions (within the meaning of Section 90.803(18)(d), Florida

Statutes) that would be admissible over a hearsay objection in a

civil proceeding in F lorida. See Castaneda v. Redlands

Christian Migrant Association , 884 So. 2d 1087, 1091 (Fla. 4th

DCA 2004)("[T]he statements of the Redlands employees are

admissions within the meaning of section 90.803(18)(d) as the

statements concerned matters regarding this specific accident

arising from their employment and were made while the deponents

were still employees of Redlands. ").

11 / Who, if anyone, took Mr. Thompson's place in the classroom

during his lunch break, the evidentiary record does not reveal.

12 / Ms. Mobley, who testified at the final hearing, described

herself in her testimony as the "representative" of Respondent's

board of directors.

13 / Ms. Fincher testified at the final hearing concerning her

reliance upon the Child Protection Team's "medic al report," the

contents of which she described in her testimony. To the extent

that her testimony was offered for the purpose of proving the

truth of the matters asserted in the report, it amounts to

hearsay evidence that would not admissible over object ion in a

civil proceeding in Florida and that therefore cannot, by

itself, in this administrative proceeding, be the basis for any

factual finding as to the correctness of the assertions made by

the Child Protection Team in its report. See cases cited in

endnote 7, above.

14 / Section 402.25(4), Florida Statutes, provides , in pertinent

part, as follows:

STAFF - TO - CHILDREN RATIO.

(a) Minimum standards for the care of

children in a licensed child care facility

as established by rule of the department

must include:

1. For children from birth through 1 year

of age, there must be one child care

personnel for every four children.

2. For children 1 year of age or older, but

under 2 years of age, there must be one

child care personnel for every six children.

* * *

15 / In its Proposed Recommended Order, the Department claims

that its "CF Pamphlet 175 - 2 (Desk Reference)" (a document that

is not part of the record in this case) contains such a " uniform

system of procedures ." Section 402.310(1)(c)2, Florida

Statutes, however, requires that the " uniform system of

procedures " referred to therein be "adopt[ed] [as] rules" in

accordance with the rulemaking procedures of Chapter 120,

Florida Statutes, not merely set forth in a "pamphlet." See

Department of Children and Family Services v. Children's

Christian School House, Inc. , No. 06 - 4777, 2007 Fla. Div. Adm.

Hear. LEXIS 213 *5 (Fla. DOAH April 16, 2007)(Recommended

Order)("In its proposed recommended order, Petitioner cites a

'CF Pamphlet 175 - 2 Enforcement Section' ('Desk Reference'),

which the Administrative Law Judge has not found in the Florida

Administrative Code, to support its contention that Class II

violations shall be penalized by fines of $ 50 - 100.").

16 / It appears from an exami nation of the Florida Administrative

Code that the Department has not yet complied with this

statutory rulemaking mandate. There is case law suggesting that

such non - compliance has the consequence of rendering the

Department powerless to impose any "disci plinary sanctions."

See Ari as v. Department of Business and Professiona l Regulation,

Division of Real Estate , 710 So. 2d 655, 661 (Fla. 3 d DCA

1998)("Absent the penalty guidelines required by law, in

accordance with section 120.68, we can only conclude th at the

order under review must be reversed. This real estate licensee

who was subject to disciplinary proceedings was entitled to

notice of all matters that the Commission would consider,

including the likely range of the penalty to be imposed.

Furthermo re, because any future creation and application of

penalty guidelines and application of those guidelines to this

litigant would constitute an ex post facto application of law,

remand for further agency action is not a viable option.").

17 / See pages 27 a nd 28 of the hearing transcript.

18 / The evidence adduced at hearing does not clearly and

convincingly establish that any of the other marks on J. D's

body depicted in the photographs that comprise Petitioner's

Exhibit E first appeared while she was at th e Facility on

November 16, 2006.

19 / Even if the Department had established that the mark was a

bite mark resulting from J. D.'s having been bitten by one of

her classmates at the Facility that day , the Department's proof

would still be insufficient to cl early and convincingly

establish "inadequate supervision" on Respondent's part. As

Administrative Law Judge Ella Jane P. Davis observed in Johnson

v. Department of Children and Family Services , 04 - 0271, 2004

Fla. Div. Adm. Hear. LEXIS 1851 *13 (Fla. DOAH June 7, 2004),

"[c]hildren biting one another is not necessarily a preventable

occurrence." Such an incident can occur in the classroom of a

child care facility even though the victim and biter are being

watched as required by Florida Administrative Code Rule 65C -

22.001(5).

COPIES FURNISHED :

Kimberly D. Coward, Esquire

Department of Children

and Family Services

401 Northwest Second Avenue, N - 1014

Miami, Florida 33128

James H. Greason, Esquire

801 Brickell Avenue, Suite 900

Miami, Florida 33131

Gregory Venz, Agency Clerk

Department of Children

and Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert A. Butterworth, Secretary

Department of Children

and Family Services

Building 1 , Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

John G. Copelan, General C ounsel

Department of Children

and Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

N OTICE OF RIGHT TO SU BMIT EXCEPTIONS

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 that

will issue the Final Order in this case.