13-000093 Department Of Children And Families vs. Tender Loving Care Christian Learning Academy Status: Closed Recommended Order on Tuesday, April 30, 2013.

Summary: Department failed to prove child care facility violated staff-to-child ratio; but did proved facility failed to have proper Level II background screening for an employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0093

)

TENDER LOVING CARE CHRISTIAN )

LEARNING ACADEMY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on

April 15, 2013 , by video teleconference at sites in Tallahassee

and Lakeland, Florida , before Thomas P. Crapps, a designated

Administrative Law Judge of the Division of Administ rative

Hearings (DOAH).

APPEARANCES

For Petitioner: Cheryl Dianne Westmoreland, Esquire

Department of Children and Families

Suite 328

200 North Kentucky Avenue

Lakelan d, Florida 33801

For Respondent: Charlann Jackson Sanders, Esquire

Charlann Jackson Sanders, P.A.

Post Office Box 7752

Lakeland, Florida 33807

STATEMENT OF THE ISSUE S

Whether Respondent, Tender Loving Care Christian Learning

Academy, violated section 402.305(4), Florida Statutes (2012) , 1 /

and Florida Administrative Code R ule 65C - 22.001(4)(a), regarding

proper staff - to - child for a child care facility; and , if so, the

ap propriate penalty.

Whether Respondent violated section 435.04(1) , Florida

Statutes , and Florida Administrative Code R ule 65C - 22.006 , by not

having proper documentation of Level II background screening for

a staff member; and , if so, the appropriate penalt y.

PRELIMINARY STATEMENT

On December 7, 2012, the Florida Department of Children and

Families (Department) issued an Administrative Complaint charging

Respondent with violating section 402.305(4) and rule 65C -

22.001(4)(a), which set staff - to - child ratios f or a child care

facility; and with violating section 435.04(1), which requires a

facility to have documentation of Level II background screening

for all staff.

On December 18, 2012, Respondent disputed the Department's

allegations and requested an administ rative hearing. The

Administrative Complaint was forwarded to DOAH, and the instant

case was set for final hearing.

At the final hearing on April 15, 2013, the Department

presented the testimony of Vicki Richmond (Ms. Richmond) and

introduced into evidenc e E xhibits A, B, and C. Respondent

presented the testimony of Cynthia Ross - Waring (Ms. Ross - Waring)

and Pristina Rattley Poe (Ms. Poe) , and introduced into evidence

C omposite E xhibits 1 and 2.

The parties did not order a transcript of the proceedings,

an d submitted P roposed R ecommended O rders on April 23 and

April 26 , 2013.

FINDING S OF FACT

1. The Department is statutorily charged with the licensing

and regulation of child care facilities. See § 402.301, et seq. ,

Fla. Stat.; and Fla. Admin. Code R. ch . 65C - 20 and 65C - 22 .

2. Respondent operates a child care facility located at

1234 N orth Martin Luther King, Jr. , Avenue, Lakeland, Florida,

and holds state license number C - 10PO0380.

3. On August 27, 2012, Ms. Richmond, an investigator for

the Departmen t inspected Respondent's child care facility. The

inspection was the result of a complaint made against Respondent

that stemmed from a child custody dispute. Ms. Richmond arrived

at Respondent's facility at approximately 2:40 p.m., where she

saw six chil dren being cared for by one staff member.

Ms. Richmond saw two children asleep in bouncy - seats. One of the

children sleeping in a bouncy - seat appeared to Ms. Richmond to be

less than one year of age .

4. Ms. Richmond asked the staff member the age of the

child, and the staff member told her that the child was six

month s old. Ms. Richmond informed the staff member that the room

was out of compliance for staff - to - child ratio for supervising an

infant. The staff member then removed the sleeping child fr om

the bouncy - seat and took the child to the infant room, placing

the sleeping child in a crib.

5. The Department did not bring forward any other evidence

showing the age of the child that Ms. Richmond believed was less

than one year of age .

6. Ms. Ross - Waring credibly testified that the child in

question was her grandchild, and that the child's age was over

one year of age . Ms. Ross - Waring explained that the child was

small for her age because the child had been born prematurely .

7 . During the ins pection, Ms. Richmond recognized one of

Respondent's staff members as a former employee with a different

child care facility. Moreover, Ms. Richmond knew that the staff

member had a prior disciplinary history with the ot her facility.

Ms. Richmond testifi ed that staff members with a disciplinary

history are required to disclose the prior discipline to the

current employer. In order to determine if the staff member had

disclosed the prior discipline, Ms. Richmond reviewed

Respondent's employment file for t he staff member. In reviewing

the employment file, Ms. Richmond found that the staff member's

records contained Level II background screening from the Agency

of Health Care Administration (AHCA) , but not one from the

Department.

8 . Ms. Richmond informed Ms. Ross - Waring, the owner and

operator of the child care facility, and Ms. Poe, the director of

the child care facilit y , that the staff member did not have the

proper documentation. As a result, the staff member immediately

left the premises, and did not return until she secured the

Level II background screening from the Department. The staff

member obtained the required background screening and returned to

work on August 30, 2012, two days after the inspection.

9 . Ms. Ross - Waring explained that she believed that the

background check provided by the A HCA addressed the same

information required by the Department. Therefore, she relied

upon the A HCA background check.

10 . A past inspection of Respondent's child care facility

dated October 7, 2011, r esulted in the finding that Respondent

did not have background screening documentation for a staff

member, D.S., despite D.S. being hired on August 15, 2011.

Respondent did not dispute the finding of the lack of proper

documentation. As a means of correc ting the error, the

Department provided Respondent with technical support concerning

the required proper background screening documentation.

11 . Respondent's failure to have the proper background

screening documentation at the August 28, 2012, inspecti on was

Respondent's second violation within two years.

CONCLUSIONS OF LAW

12 . DOAH has jurisdiction over the parties and subject

matter of this proceeding. § § 120.57(1) and 120.569, Fla. Stat.

13 . Because the Department seeks to impose license

discipl ine here, the Department has the burden of proving the

allegations in its Administrative Complaint by clear and

convincing evidence. 2 / Dep't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

14 . In accordance with its duties pursuan t to

sections 402.301 through 402.319, Florida Statutes, the

Department has established a licensing program for child care

facilities. Section 402.305(4) and rule 65C - 22.001(4) set out

the minimum staff - to - child ratios.

15 . Specifically, rule 65C - 22.00 1(4)(a) provides that the

staff - to - child ratio is based on the primary responsibility for

the direct supervision of children and applies at all times while

children are in the child care facility. Rule 65C - 22.001 (4)(b)

provides :

1. In groups of mixed age ranges, where

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 of age are included, one (1) staff

member shall be responsible for no more than

six (6) children of any age group, at all

times.

16 . In the instant case, whether Respondent violated rule

65C - 22.001(4)(b) turns on the age of the child removed from the

bouncy - seat by the staff member. It is a close factual question,

but the undersigned finds that the Department did not meet its

burden of proof by clear and convincing evidence. Clear and

convincing evidence is the type of evidence that gives a fact

finder "firm belief or conviction, without hesitancy, as to the

truth of the allegation . . . . " Here, there was little evidence

establishing the age of the child. The only testimony that the

child was under the age of one was a hearsay statement fr om a

staff member as to the child's age. Further, the Department did

not bring forward evidence showing that the staff member's

statement would fit within a hearsay exception, such as an

admission . 3 / See § 90.803(18)(d), Fla. Stat. Moreover, even if

the undersigned did find that the unidentified staff member's

statement fit the hearsay exception for an admission , Respondent

brought forward credible evidence that the child in question was

over the age of one year. Consequently, the undersigned finds

that the Department did not meet its evidentiary burden of

proving the violation by clear and convincing evidence. Finally,

although Ms. Richmond does have extensive experience in

inspecting child care facilities and viewing children, her

testimony that the c hild appeared to be younger than one year of

age does not create firm belief or certainty in order to

establish it as a fact by clear and convincing evidence.

17 . Next, turning to the issue of the improper

documentation, the undersigned finds that the Dep artment did

establish by clear and convincing evidence that Respondent had

failed to keep proper record s concerning the staff member's

Level II background screening.

18 . It was undisputed that the staff member did not have

the Level II background screen ing required by the Department.

Although the staff member had a background screening that had

been conducted by A HCA , the background screening for a different

state agency is not sufficient under the rule.

19 . Turning to the recommended penalty, the D epartment is

required to adopt rules establishing grounds for discipline and

uniform procedures for imposing discipline. § 402.310(1)(c),

Fla. Stat. The Department's adopted rule for the uniform

procedure imposing discipline is rule 65C - 22.010 . Under ru le

65C - 22.010(d) there are three classes of licensing violations.

In pertinent part, the second or subsequent incident of

noncompliance with an individual Class II standard results in a

Class II violation. Fla. Admin. Code R. 65C - 22.010(d) 2. (The

licensi ng standards are described on CF - FSP Form 5316, March

2009, which can be obtained from the Department's website. Fla.

Admin. Code R. 65C - 22.010(1)(d) 1.). The disciplinary sanctions

for Class II violations are set out in rule 65C - 22.010(e) 2.b.,

which prov ides that:

For the second violation of the same Class II

standard, the department shall issue an

administrative complaint imposing a fine of

$50 for each violation. This violation, and

subsequent violations, of the same standard

within a two year period w ill be classified

as Ð Class II. Ñ

20 . Applying the disciplinary sanctions set out in rule

65C - 22.010, the undersigned finds Respondent's failure to have

the proper background screening documentation resulted in a

violation of a Class II standard. Furthe r, the facts showed that

it was Respondent's second violation for failure to have the

proper documentation within 24 months . Therefore, the penalty

guideline requires an administrative fine of $50.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order finding that:

1) Respondent did not violate section 402.305(4) and

rule 65C - 22.001(4) concerning the staff - to - child ratios; and

2) Respondent vio lated rule 65C - 22.010, failure to keep

proper records , and that Respondent be fined $50.00 for non -

compliance pursuant to rule 65C - 22.010(1)(e)2.b.

DONE AND ENTERED this 30th day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of t he

Division of Administrative Hearings

this 30th day of April , 2013 .

ENDNOTE S

1/ All references to Florida Statutes shall be the 2012 version

of the statutes, unless otherwise specified in the Recommended

Order.

2/ Clear and convincing evidence requi res 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 witnesses must

be lacking in confusion as to 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: Henson , 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz

v. Walker , 492 So. 2d 797, 800 (Fla. 4th DCA 1983)

3/ Under section 90.803(18)(d), Florida Statutes, if an employee

makes a statement concerning a matter which is connected with a

duty within the scope of the employee's agency or employment, the

statement is admissibl e against both the employee and the

employer. See Castaneda ex rel. Cardona v. Redlands Christian

Migrant Ass'n ., 884 So. 2d 1087, 1090 - 91 (Fla. 4th DCA

2004)(holding, in a personal injury action against a daycare

center, that statements by daycare employ ees were admissible

against daycare employer). The Department in this case did not

bring forward evidence showing the identity of the unidentified

staff member or the scope of the employee's employment. There

was no testimony that the scope of the staff member's employment

concerned having knowledge about the child's age. Therefore, the

undersigned finds that the staff member's statement does not meet

the hearsay exception for an employee admission.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk

Depa rtment of Children and Families

1317 Winewood Boulevard

Tallahassee, Florida 32399

Cheryl Dianne Westmoreland, Esquire

Department of Children and Families

Suite 328

200 North Kentucky Avenue

Lakeland, Florida 33801

Charlann Jackson Sanders, Esquire

Cha rlann Jackson Sanders, P.A.

Post Office Box 7752

Lakeland, Florida 33807

David Wilkins, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399

Marion Drew Parker, General Counsel

Departmen t of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.