11-004508 Department Of Children And Families vs. Lil' Stars Learning Center, Inc., D/B/A Lil' Stars Learning Center Status: Closed Recommended Order on Friday, December 30, 2011.

Summary: The Department proved one of four counts in Administrative Complaint by clear and convincing evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4508

)

LIL' STARS LEARNING CENTER, )

INC., d/b/a LIL' STARS )

LEARNING CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on November 8, 2011, in New Port Richey, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearin gs.

APPEARANCES

For Petitioner: Robert C. Burnette, Esquire

Law Offices of Robert C. Burnette, P.A.

5522 Gall Boulevard

Zephyrhills, Florida 33542

For Respondent: Alicia Victoria Gonzalez, Esquire

Department of Children an d Families

9393 North Florida Avenue , Suite 902

Tampa, Florida 33612

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

provisions of Florida Statutes and Florida Administrative Code

relating to the operation of a c hild care facility , and, if so,

whether sanctions should be imposed.

PRELIMINARY STATEMENT

Respondent, Department of Children and Famil i es

(hereinafter the "Department"), filed an Administrative

Complaint against Petitioner, Lil' Stars Learning Center, Inc . ,

d/b/a Lil' Stars Learning Center (the "Center"), dated July 22,

2011. The Administrative Complaint alleged violations of

regulations governing the operation of a child care facility.

There were four alleged incidents contained in the

Administrative Co mplaint. The Department found that the

cumulative violations warranted imposition of an administrative

fine and conversion of the Center's license to a probationary

status. The Center filed a response to the Administrative

Complaint which was accepted by the Department as a Petition for

Formal Administrative Hearing. The Administrative Complaint and

response were forwarded to the Division of Administrative

Hearings and assigned to the undersigned Administrative Law

Judge.

At the final hearing, the Depa rtment offered the testimony

of six witnesses: Toni Dye; Rebecca Conner; Donna Richey,

counselor for the Department; Judy Doyle, licensing supervisor

for the Department; Rhonda Gollhardt, principal owner of the

Center; and Tracy Clemmer, teacher at the Ce nter. The

Department's E xhibits 1 through 9 were admitted into evidence.

The Center called one additional witness: Robin Kirk, co - owner

of the Center along with her mother, Rhonda Gollhardt. The

Center did not offer any additional exhibits into evidenc e.

The undersigned was advised that a transcript of the final

hearing would be ordered. Because of scheduling issues

concerning the upcoming holidays, the parties agreed to file

their proposed findings of fact and conclusions of law by

December 12, 2011. However, the T ranscript of the proceeding

was not filed at DOAH until December 8, 2011, so the parties

requested and received ten additional days to file their

proposed recommended orders. The Department and the Center each

timely filed P roposed R ecomme nded O rders. Each was duly

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Department is the government agency responsible for

licensing, inspecting , and monitoring child care facilities in

Florida . At all times subject hereto, the Department was

operating according to its statutory mandates.

2. The Center is a child care facility located at

5034 18th Street, Zephyrhills, Florida. It operates under

L icense No. C06PA0156 and is licensed for a maximum capacity of

67 stud ents. The Center has been operating for approximately

five years. 1/ It is owned by Ms. Gollhardt and her daughter,

Ms. Kirk.

3. On July 22, 2011, the Department issued an

Administrative Complaint against the Center. The Administrative

Complaint contain ed allegations concerning four separate

incidents over a four - month period, from September 2010 to

January 2011. The incidents, as set forth in pertinent part

from the Administrative Complaint, are as follows:

a. On August 5, 2010, G.H., a staff member,

w as observed by another staff member to

have slapped K.L., a three (3) year old

child, across the face. Another staff

member heard the incident and the child

crying subsequent to the slapping.

b. On October 6, 2010, a four (4) year old

child, B.G., had bee n spitting on other

children and had previously been

disciplined for his inappropriate

behavior. The child continued to spit and

R.G. , the owner/director, sprayed the

child in the face with the liquid from a

bottle that was being used to sanitize the

tabl es. The liquid in the bottle was

diluted bleach and water. R.G. stated the

solution was 3 table spoons [sic] bleach

to 5 gallons water.

c. After conducting an investigation of an

incident on November 29, 2010, it was

determined that a staff member, T.C. , used

her hands to press down on a two (2) year

old child's forearms to keep the child

from getting up from the time out chair.

d. On January 24, 2011, D.L., a five (5) year

old child, had an accident and the

owner/director needed to change his

underwear . The child threw a fit because

he wanted [sic] boxers and the facility

did not have boxers to put on him. After

conducting an investigation [,] it was

determined that struggle [sic] the

owner/director, R.G. , had been observed

dragging the child by the ar ms across the

floor.

4. A complaint form was drafted for each of the four

incidents after the Department finished its investigation for

each incident. The complaints were provided to the Center for

review, and the Center signed an acknowledgement that it had

received each of the complaints.

5. After the first incident (the slapping of a child), the

Department issued an Administrative Warning Notification dated

September 22, 2010. The warning advised the Center that the

incident was the first Class II violation against the Center

within a two - year period. The Center was warned that another

Class II violation within two years would result in a fine in

the amount of $50.00. The warning did not include a process for

the Center to appeal or contest the De partment's finding s .

6. After the second incident (the spray bottle), the

Department issued a Notice of Administrative Action dated

October 13, 2010. The Notice advised the Center that the

incident constituted the second Class II violation within a

two - y ear period and of the Department's "intent to impose an

administrative fine as a result of this repeat Class II

violation." The Notice advised the Center that it would receive

a formal administrative complaint imposing the fine and that

upon receipt of th e administrative complaint , the Center would

have 21 days to either pay or appeal the fine. According to the

Department's witness, the action taken by the staff member

constituted a "physical form of discipline that could have

caused the child to be harme d."

7. Following the third incident (teacher holding child in

a chair), the Department issued another Notice of Administrative

Action, this one dated November 30, 2010. This Notice advised

the Center that the Department intended to issue an

Administrat ive Complaint imposing a fine commensurate with a

third Class II violation within a two - year period. The Notice

had the same language as the prior Notice concerning appeal

rights.

8. Finally, after the fourth incident (the soiled boy),

the Department iss ued yet another Notice of Administrative

Action dated January 25, 2011. This final Notice advised the

Center that the Department intended to impose a fine and to

change the Center's license to probationary status. The Notice

also advised that another Cla ss II violation "within [two] years

from the date of this report" would result in the Center's

license being suspended, denied, or revoked. 2/ The Notice again

stated that an Administrative Complaint would be issued from

which an appeal could be taken with in 21 days.

9. On July 22, 2011, the Department issued its promised

Administrative Complaint setting forth allegations as to each of

the four incidents. The Administrative Complaint provided the

Center its first opportunity to contest or challenge the

al legations set forth in the four previous notices or warnings.

The Center timely filed a request for formal administrative

hearing to contest the Department's findings.

10. The four incidents will be discussed more fully below,

including the Department's b asis for its findings and the

Center's explanation, mitigation or other response.

Incident No. 1 - - Slapping a child

11. This incident occurred on Thursday, August 5, 2010,

while Ms. Gollhardt and Ms. Kirk were both out of town on family

matters. A teacher , Gayla, was observed by another teacher

slapping a child's face. The second teacher immediately

contacted the owners via cell phone to report what had happened.

Ms. Gollhardt had the observing employee do a written statement

and place it in Ms. Gollhard t's lock box for safe keeping. Then

Ms. Gollhardt verified that Gayla had left the Center for the

day. Ms. Gollhardt returned to the Center and looked into the

matter. She directed Gayla not to report back to work and then

called the Department's abuse hotline to self - report the

incident. Ms. Gollhardt then contacted Ms. Richey, the

Department's counselor assigned to the Center. Ms. Richey came

to the Center on the following Tuesday and conducted her own

investigation of the matter.

12. When it became clear that the incident had indeed

occurred as reported, Ms. Gollhardt terminated Gayla's

employment at the Center. From the day of the incident until

she was terminated, Gayla had not been allowed back into the

Center.

13. The Department found out about this incident in two

ways: First, a Child Protection Investigator ("CPI") notified

Ms. Richey after the initial hotline call made by Ms. Gollhardt,

i.e., after the Center self - reported the incident. Second, when

Ms. Gollhardt contacted Ms. Richey directl y to report the

incident.

14. There was no testimony from the parents of the child

or from the terminated employee.

Incident No. 2 - - The Spray Bottle

15. As set forth in the Administrative Complaint, the

child at issue, B.G., had been disciplined previousl y for

spitting on other students. Ms. Gollhardt had written reports

about B.G.'s behavior and sent the reports home with B.G.

However, B.G.'s parents never responded to the reports or made

any effort to discuss his behavior with the Center.

16. On Octob er 6, 2010, B.G. was again spitting on other

children. Ms. Gollhardt tried to prevent B.G. from doing this

by holding him in her lap as she sat and read a story to a group

of students. This worked until the story was over and the

students got up from the carpeted reading area. At that time,

B.G. spat on another child. Ms. Gollhardt, who was standing

nearby and holding a bottle in her hand, sprayed a mist towards

B.G., who was three or four feet away, i.e., on the other side

of a toy shelf from Ms. Gollh ardt. Her intent was to get his

attention and to show him that it was uncomfortable to have

liquid of any kind involuntarily foisted upon you.

17. The bottle was apparently set on a "mist" mode and

there is insufficient evidence as to whether the liquid actually

touched B.G. or not. The liquid was contained in a bottle that

had been used to sanitize tables at the Center. The bottle

contained water and bleach, but there is no competent evidence

as to the ratio of the mixture. The Administrative Complai nt

alleges that Ms. Gollhardt said that the mixture was three

tablespoons of bleach to five gallons of water, but th at is the

only evidence concerning the mixture . Nor was there any

testimony provided as to the potential harm to a person that

such a mixtu re might cause. If the mixture was as reported,

there would seem to be a very minimal amount of bleach in the

misted spray.

18. Ms. Gollhardt prepared an incident report to show to

B.G.'s parents, but she was not at the Center when they picked

him up on t he day of the incident. The next morning, when

B.G.'s father dropped him off at school, Ms. Gollhardt told him

what had happened and showed him the incident report. The

father examined the contents of the spray bottle and indicated

that no further action would be necessary. Later that day,

Ms . Gollhardt advised the parents that if B.G. did not stop this

behavior, they would have to find another place for him to go.

The mother took great exception to this admonition, so she

reported the incident to the D epartment. B.G.'s mother

thereafter withdrew B.G. from the Center , and he has never

returned.

19. While spraying a water and bleach mixture at a child

is never a good idea and is not condoned, it does not rise to

the level of a punishment or discipline of the child.

Incident No. 3 - - The Crying Chair

20. The Center utilizes two different methods of dealing

with children who are disruptive or act inappropriately. The

Center use s the "time out" method, wherein they place a child in

a designated place for a specified period of time so the child

has an opportunity to think about their behavior. The Center

also employ a "crying chair , " which is a chair to which a crying

child is directed to sit until they stop crying. The children

apparently understand that t hey can get up from the chair as

soon as they stop crying. The Center says the crying chair is a

very effective tool.

21. On November 29, 2010, a small, just - turned - two - year -

old child (referred to as "Lisa" - - not her real name) came to the

Center late. Sh e had been at a doctor's appointment with her

grandmother and arrived at the Center at the time her class was

playing on the playground. "Lisa" was upset that she could not

stay with her grandmother and was crying and unruly when her

grandmother left. Af ter failing in her efforts to calm "Lisa"

down, her teacher , Ms. Clemmer , placed "Lisa" in a crying chair

on the covered porch adjacent to the playground. "Lisa" got up

from the chair three or four times and continued to cry and act

out.

22. Ms. Clemmer p laced "Lisa" back in the chair each time

she got out and remembers that she "may have" placed her hands

on "Lisa" when she directed her back to the chair. Ms. Clemmer

does not remember any one return to the chair to be different

from the others. Ultimate ly, "Lisa" calmed down, hugged

Ms. Clemmer and went off to play with her classmates.

23. Meanwhile, Ms. Dye was parked across the street from

the Center waiting for her daughter's school bus to arrive.

Ms. Dye said that children were not usually out on th e

playground when she picked up her daughter , but they were on

this day. She was parked approximately 25 yards (75 feet) from

the playground area. Ms. Dye does not remember any posts or

other items obstructing her view. She does not remember a porch

or covered area next to the playground. Upon hearing shouts or

other noises, Ms. Dye turned to watch what was happening on the

playground. Ms. Dye observed a little girl sitting in a chair

and interacting with a teacher. The little girl got up from the

cha ir three or four times, but each time a teacher would direct

her back to the chair. The little girl seemed to be trying to

go over to a plastic playhouse where other children were

playing. This interaction went on for ten or 15 minutes.

24. Ms. Dye remem bers that the last time the teacher

brought the girl back to the chair , she "may have" yelled at the

girl. Then, the teacher grabbed the child's upper arm, pulled

her across the playground, and placed her roughly into the

chair. She could not tell exactl y, but it looked to Ms. Dye

like the teacher may have pulled the student's ponytail, jerking

her head backwards. Ms. Dye does not believe that what she

observed was a teacher attempting to keep an unruly child from

hurting herself.

25. Ms. Dye reported th e incident to the Department.

Ms. Richey, a CPI, and a police officer were dispatched to the

Center to investigate the allegations. When they came to the

Center, they identified the victim as a black child with a

ponytail. Ms. Gollhardt said she had no children with ponytails

and only one black child in the two - year - old age group. She

offered to wake the child from her nap, but the investigators

said not to do so. The investigators eventually talked with

Ms. Clemmer and with the child's mother. Ms. Ri chey remembers

Ms. Clemmer being very nervous and saying that she placed a

child in time out for not behaving properly.

26. Ms. Clemmer remembers the incident a little

differently than reported by Ms. Dye. She says that when "Lisa"

was dropped off by her grandmother, the child was having extreme

separation anxiety. Ms. Clemmer tried to calm "Lisa" by holding

her and walking out to the fence so "Lisa" could wave goodbye to

her grandmother. That didn't work. After "Lisa" continued

screaming and crying, Ms . Clemmer took her to the crying chair ,

with which "Lisa" was familiar. The chair was located on a

covered patio adjacent to the playground area.

27. "Lisa" kept "flopping out of the chair" and running

across the playground. Each time, Ms. Clemmer woul d redirect

her back to the chair and try to calm her down. She does not

remember any one of the interactions with "Lisa" to be more

forceful or different from any other. The last time she sat

"Lisa" down, however, Ms. Clemmer remembers placing her hand i n

the chair between Lisa's legs to prevent "Lisa" from flopping

out of the chair.

28. Eventually, "Lisa" had had enough crying and stopped

being upset. She went over and hugged Ms. Clemmer , then ran off

to play with the other children. That was the end o f the

matter. "Lisa" is still a student at the Center. Incidentally,

"Lisa" is a child of mixed races (African - American and

Caucasian); she has very short hair and does not have a

ponytail.

29. Ms. Clemmer holds an e arly c hildhood a ssociate

certificate, obtained after a six - month course of study. Her

testimony was credible , and she appears to have the interests of

her students as a priority.

30. Based on the foregoing facts, there is no evidence

that Ms. Clemmer "used her hands to press down on a two ( 2) year

old child's forearms to keep the child from getting up from the

time out chair" as alleged in the Administrative Complaint.

Incident No. 4 - - The Boy with Soiled Pants

31. On January 24, 2011, D.L., a five - year - old boy, was

playing o n the playground when he announced an immediate need to

go to the bathroom. His teacher, Susan, took him inside to use

the toilet. However, before getting to the bathroom, D.L. had a

small bowel movement and soiled his pants.

32. Susan and D.L. remained in the bathroom for a while

and then Susan came out to report that D.L. was "having issues."

Ms. Gollhardt then went in to see if she could help. She found

the little boy screaming and fussing, upset , and refusing to

cooperate. Ms. Gollhardt began to try to calm the bo y down.

D.L. was upset because he had been wearing boxer shorts and

wanted a new pair to replace the ones he had soiled.

Unfortunately, his cubicle did not contain any clean boxers.

Instead, Ms. Gollhardt offered D.L. a pair of his brother's

underwear, but they were briefs , and D.L. wanted no part of

them. She also offered D.L. his own soiled underwear , because

they were only slightly soiled and gave him the option of

wearing a pair of his sister's pull - ups. He wanted none of

those.

33. As Ms. Gollhard t continued to try to reason with D.L.,

he became more agitated and upset. He tried to crawl behind the

toilet and began kicking and hitting at Ms. Gollhardt.

Ms. Gollhardt was eventually able to dress D.L. (although it is

unclear which pair of underwear was placed on him). Then

Ms. Gollhardt picked up D.L., wrapping her arms around him as he

faced away from her and carried him out of the bathroom. As

they left the bathroom, D.L. reached up and knocked

Ms. Gollhardt's glasses off her face. When she ben t down to

retrieve her glasses, D.L. began to kick her.

34. At that point, D.L. dropped to the ground in a sitting

posture and refused to move. Ms. Gollhardt gathered her glasses

and reached down, grabbing D.L.'s arm. When D.L. refused to get

up, Ms. Gol lhardt slid him across the floor as she held him by

his arm. They went into a classroom where D.L. could be watched

by another teacher and closed the door. Then Ms. Gollhardt came

out of the room and left the door open as she placed a call to

D.L.'s pare nts.

35. While this was going on, Ms. Conner, another child's

parent, arrived at the Center to retrieve her infant child. She

saw D.L. in the bathroom kicking and screaming as Ms. Gollhardt

attempted to dress him. She saw Ms. Gollhardt dragging D.L.

thre e or four feet across the floor by his arm as D.L.

whimpered. She remembers them going into a classroom and

Ms. Gollhardt closing the door. She does not remember the door

being re - opened as Ms. Golldardt made the phone call.

36. After placing D.L. in the classroom, Ms. Gollhardt

called his mother to come and get him at the Center. D.L.'s

mo ther arrived shortly and discussed the situation with

Ms. Gollhardt. She then talked calmly with D.L. and had him

apologize to Ms. Gollhardt for his bad behavior. D. L.

apologized and then hugged Ms. Gollhardt. D.L. and his four

siblings are still students at the Center.

37. Ms. Conner's testimony is somewhat suspect. She had

been admonished by Ms. Gollhardt just prior to this incident for

being behind on her child's tuition payments. Despite the

alleged incident, Ms. Conner kept her infant and one other child

at the Center until August of this year (2011). Further,

Ms. Conner appears to have initially told the Department's

investigator a different story, i.e., that Ms. Gollhardt dragged

D.L. across the floor all the way from the bathroom into another

classroom.

The Center's Discipline Policy

38. The Center has a policy concerning how it will

administer discipline to its students. Each teacher is expected

to comply with the policy. Each student's parent(s) must

acknowledge receipt and review of the policy. It is the intent

of the Center that its discipline policy be consistent with the

Department's Basic Guidance and Discipline protocols.

39. The Department's pr otocols distinguish between

discipline and punishment. Discipline includes tools and

actions used to teach a child a lesson or to redirect their

behavior. Punishment is "more of a consequence" of a child's

behavior and is used to control a child. Or, as stated by the

Department's licensing supervisor, "punishment is an action that

is taken by a caregiver in response to a bad choice. And it's a

consequence of some kind of bad inappropriate behavior that a

child is engaged in." There is no published defi nition of the

distinction between discipline and punishment in the

Department's rules, and its witnesses acknowledged there is a

fine line between the two.

40. According to the Center's policies, discipline is not

to be associated with food, rest , or toile ting. Nor should

discipline be severe, humiliating , or frightening. Spanking or

other forms of physical punishment are not to be used by a

teacher.

Enforcement of the Law

41. The Department utilizes progressive enforcement when

citing child care facilit ies for violations of statutes and

rules. When looking at violations, there are three classes of

violations to be considered: Class I violations are those which

may endanger a child's life; they are the most severe. Class II

violations address disciplin ary actions, teacher - to - student

ratios, and other practical aspects of operating a child care

facility. Class III violations are those relating to paperwork

or other less harmful matters.

42. When looking at Class II violations, the Department

will assign a progressively more serious sanction when multiple

violations occur within a two - year period. For example, a

single Class II violation may warrant only a warning; a second

Class II within a two - year period will result in a fine. Four

Class II violation s within a two - year period will result in a

license being placed under probationary status. Five violations

during a two - year period can result in denial or suspension of

the license.

43. The effect of a probationary license is serious. A

facility with a probationary license is required to post its

violation citations on the wall of its facility. A facility is

not allowed to advertise while it is on probation. Facilities

under probation forfeit their connection to the Early Learning

Coalition (the "Coal ition"), the entity that provides payment or

subsidies for low - income families to place their children in a

licensed day care facility.

44. Ms. Kirk cooperated with the Department concerning its

investigation into the four alleged incidents. She provided

names of witnesses and even offered written statements from

eyewitnesses. The Department did not accept the written

statements, saying their investigation was complete. No further

explanation was provided by the Department as to why they would

not review additional information that may have led them to a

more informed conclusion.

45. Instead, the Department warned Ms. Kirk that the

Center had better "straighten up" or they would be facing more

severe sanctions. Ms. Kirk says that a Department

represent ative told her the Department had talked with the

Coalition. According to the representative, the Coalition said

it had received numerous complaints about the Center and that

the Center was not cooperating with the Coalition.

46. Ms. Kirk was concerned ab out those comments. About

one half of the Center's students are receiving subsidies

through the Coalition. Loss of connection to the Coalition

would be an extreme hardship for the Center. Ms. Kirk contacted

the Coalition to find out if there was indeed a problem of some

kind. Neither Ms. Kay Williams, the v oluntary p re - k indergarten

representative at the Coalition, nor her supervisor, Kim Bergeau

(phonetically spelled), could verify that any complaints had

been received concerning the Center. The Center has not been

contacted directly by the Coalition about any complaints.

47. Each of the four incidents discussed above was

investigated by the Department, by CPI, and by local law

enforcement. No evidence as to the findings or conclusions by

CPI or law en forcement was entered into evidence as support for

the Department's position, so there is no independent

corroboration that the incidents occurred as alleged .

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(1), Florida

Statutes (2011). Unless specifically stated otherwise herein,

all references to Florida Statutes will be to the 2011 version.

49. The Department is mandated t o protect the health,

safety , and well - being of the children of the State of Florida

and to promote the safe physical, intellectual, motor and social

development of children in the care of others. § 402.26, Fla.

Stat. Section 402 . 305 requires the Departm ent to establish, by

rule, licensing standards for child care facilities, including

standards "designed to address the . . . safety . . . f or all

children in child care." § 402.310(1). That section also

charges the Department with the responsibility of a dministering

the child care/day care licensing program. Id.

50. In cases where a state agency makes allegations that

an applicant or licensee engaged in wrongdoing, the burden is on

the Department to prove the wrongdoing. Dep ' t of Banking & Fin .

v. Osbor ne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996).

Factual findings based on record evidence must be made

indicating how the alleged conduct violates the statutes , or

rules , or otherwise justifies the proposed sanctions. Mayes v.

Dep ' t of Child . & Fam. Ser v. , 801 So. 2d 980, 982 (Fla. 1st DCA

2001).

51. The standard of proof in this case is clear and

convincing evidence , because the Department is seeking to

discipline the Center and take action detrimental to the

Center's license, thus , making it penal in nature. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

52. The clear and convincing evidence standard is greater

than the preponderance of the evidence standard used in most

administrative proceedings. The clear and convincing standard

is quite strin gent. It has been described as follows:

[C]lear and convincing evidence 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 explicit and

the wi tnesses 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

establishe d.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

53. Accordingly, the Department must have proven that each

of the allegation s is true by the presentation of distinctly

remembered, precise, explicit , and clear testimony. The only

violatio n proven by the Department by clear and convincing

evidence in this case is the one addressing a teacher slapping a

student. It is clear that that incident, reported by the Center

itself, did occur.

54. F acts as to the other incidents were not proven by

clear and convincing evidence. The eyewitness accounts were not

distinctly remembered or free of confusion. Neither Ms. Dye ,

nor Ms. Conner , provided testimony which produced in the mind of

this finder of fact a firm belief or conviction as to the truth

of the allegations. Neither Ms. Dye's across - the - yard

observations , nor Ms. Conner's potentially retaliatory

testimony , was totally credible. Further, each of them had

memories of the situations they viewed which were inconsistent

with other witnesses' first - hand accounts.

55. Other than the allegations themselves as set forth in

the Administrative Complaint, the Department did not provide any

persuasive evidence as to the facts surrounding each allegation.

For example, there was no confirmation of wron gdoing by any

other agency which investigated the incidents. There was no

testimony by the parents of the children involved in the alleged

incidents. The Department did not satisfy the clear and

convincing evidence standard.

56. Section 402.310 addresse s discipline which may be

imposed against a child care facility for failure to conform

with licensing requirements and states in pertinent part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions f or a violation of

any provision of ss. 402.301 - 402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not t o

exceed $100 per violation, per day.

However, if 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 in addition to or in lieu

of an y other disciplinary action imposed

under this section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation - status license or

registration may not be issue d for a period

that exceeds 6 months and the probation -

status license or registration may not be

renewed. A probation - status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probation - status licensee or registrant is

not in compliance with the terms of

probation or that the probation - status

licensee or registrant is not making

sufficient progress toward compliance with

ss. 402.301 - 402.319.

3. Deny, suspend, or revoke a license or

registration.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in para graph (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

severity of the actual or potential har m,

and the extent to which the provisions of

ss. 402.301 - 402.319 have been violated.

2. Actions taken by the licensee or

regist rant to correct the violation or to

remedy complaints.

3. Any previous violations of the

licensee or registrant.

57. Florida Administrative Code Rule 65C - 20.012 identifies

the Department's treatment of violations of its licensing rules

for child car e facilities. The rule states in pertinent part:

(1) Definitions.

* * *

(d) "Violation" means a finding of

noncompliance by the department or local

licensing agency with a licensing standard.

* * *

2. "Class II Violation" is the sec ond or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF - FSP Form 5318 and CF - FSP Form 5317.

Class II violations are less serious in

nature than Class I violations and could be

anticipated to pose a threat to the health,

safety or well - being of a child, although

the threat is not imminent.

* * *

(3) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation. In addition, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the facility to correct

the violation when determining the

appropriate disciplinary sanction.

(b) Each st andard violation has an

assigned classification based on the nature

or severity of the violation(s) as

identified within CF - FSP Form 5318 and

CF - FSP Form 5317.

(c) A violation of a Class II standard

that results in death or serious harm to a

child shal l escalate to a Class I violation.

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two (2) year

period shall be progressively enforced as

follows:

* * *

2. Class II Violations.

a. For the first violation of a Class II

standard, the department shall issue a

formal warning letter stating the

department's intent to take an

administrative action if further violations

of the standard occur. The violation will

be classified as "Technical Support."

b. For t he second violation of the same

Class II standard, the department shall

issue an administrative complaint imposing a

fine for $50 for each violation. This

violation, and subsequent violations, of the

same standard within a two year period will

be classifi ed as "Class II."

c. For the third violation of the same

Class II standard, the department shall

issue an administrative complaint imposing a

fine of $60 per day for each violation.

d. For the fourth violation of the same

Class II standard, the dep artment shall

issue an administrative complaint placing

the provider's license on probation status

for a period not to exceed six months, and

the department shall also issue an

administrative complaint imposing an

additional fine of $75 per day for each

vi olation. . . .

58. The Department has not proven any violations of

standards by clear and convincing evidence beyond the first

incident, the slapping of a child. Inasmuch as the other

violations were not proven, the progressive discipline standards

are not operative in this matter.

59. It is then only necessary to determine the appropriate

fine for the one violation which was proven. The Center's

response to the incident is a clear indication that it acted

appropriately and quickly to prevent any recurr ence of such an

event. It is also evident that the teacher who slapped the

child acted outside the policies established by the Center.

That is, her behavior was that of a rogue employee and is not

evidence of wrongdoing by the Center. The letter of warn ing

imposed by the Department is the correct sanction for that

violation. No further monetary sanction is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petiti oner,

Department of Children and Famil ies, upholding the issuance of

the letter of warning against Respondent, Lil' Stars Learning

Center, Inc., d/b/a Lil' Stars Learning Center, but dismissing

the other allegations in their entirety.

DONE AND ENT ERED thi s 30th day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3 060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December , 2011 .

ENDNOTES

1/ Ms. Richey, however, testified that she had been the Center's

licensing c oordinator for ten years. Apparently , the Center

operated under previous management. Ms. Kirk testified that she

and her mother bought the Center in December 2007.

2/ The Department conceded at final hearing that the Notice was

in error. It should not have said that any subsequent Class II

violation within two years of the report would result in the

further sanctions, but that a fifth violation within two years

of the first violation could result in sanctions.

COPIES FURNISHED :

David Wilkins, Secret ary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Drew Parker, General Counsel

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory D. Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204A

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Robert C. Burnette, Esquire

Law Office of Robert C. Burnette, P.A.

5522 Gall Boulevard

Zephyrhills, Flo rida 33542

Alicia Victoria Gonzalez, Esquire

Department of Children and Families

9393 North Florida Avenue, Suite 902

Tampa, Florida 33612

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days f rom 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.