13-000482 Department Of Children And Families vs. Richardson's Learning Enrichment Center, Inc. Status: Closed Recommended Order on Thursday, June 13, 2013.

Summary: DCF did not prove that Richardson's violated the requirement of rule 65C-22.001(5)(a) to maintain supervision of a child in its care. The child involved was not in Richardson's care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN

AND FAMILIES ,

Petitioner ,

vs. Case No. 13 - 0482

RICHARDSON ' S LEARNING

ENRICHMENT CENTER, INC. ,

Respondent .

/

RECOMMENDED O RDER

Administrative Law Judge John D. C. Newton, II, of the

Division of Administrative Hearings (DOAH), heard this case on

May 22, 2013, by video teleconference at locations in Lakeland

and Tallahassee, Florida.

APPEARANCES

For Petitioner: Cheryl Dianne Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830 - 7646

For Respondent: Carolyn Richardson

Richardson ' s Learning Enrichment Center

1426 West Bryan t Street

Bartow , Florida 33830 - 3411

STATEMENT OF THE ISSUE

Should P etitioner, Department of Children and Families

(Department) , fine Respondent, Richardson ' s Learning Enrichment

Center, Inc. (Richardson ' s), $150.00 for failing to maintain

supervision of a child as requ ired by Florida Administrative Code

Rule 65C - 22.001(5)(a)?

PRELIMINARY STATEMENT

On January 10, 2013, the Department filed an Administrative

Complaint charging Richardson ' s with failure to maintain required

supervision of a child. Richardson ' s disputed th e charges and

requested a hearing. On February 8, 2013, the Department

referred the matter to DOAH to conduct the requested hearing.

The undersigned set the hearing for April 26, 2013. On the

Department ' s motion, due to the unavailability of two witness es,

the undersigned continued the hearing to May 22, 2013. The

hearing was conducted as scheduled.

The Department presented testimony from Shannah Hotaling and

Vicki Richmond. Department ' s Exhibits A and B were admitted into

evidence.

Richardson ' s pres ented testimony from Carolyn Richardson and

Natasha Richardson. Exhibits 1 through 3 of Richardson ' s were

admitted into evidence.

The parties did not order a transcript. Both parties timely

filed proposed recommended orders which have been considered i n

the preparation of this Recommended Order .

FINDING S OF FACT

1. Richardson ' s holds Department l icense n umber C10PO538 to

operate a child care facility in Bartow, Florida, as authorized

by section s 402.301 through 402.319, Florida Statutes (2012) , and

Flo rida Administrative Code Chapter 65C - 22.

2. The statutes and rules governing operation of a child

care facility impose minimum supervision requirements for

children in the care of the facility.

3. On April 20, 2012, Shannah Hotaling of the Early

Learni ng Coalition of Polk County visited Richardson ' s to screen

three children registered to attend the facility.

4. As she arrived, Ms. Hotaling observed a female toddler

about two years of age leave the building and close the door

behind her. The toddler wa lked over to stand beside an orange

car parked in front of the facility.

5. Ms. Hotaling did not see any adults in the area. She

spoke to the toddler and escorted her into Richardson ' s.

6. While Ms. Hotaling was asking an employee about the

child, the toddler joined one of the classes in progress.

7. The toddler was the grandchild of Richardson ' s owner and

the daughter of Richardson ' s director. Both of them were present

the morning of April 20, 2012.

8. Although the owner's child was a registered student of

the facility, she was not signed in as attending that day.

9. Just before Ms. Hotaling arrived, the owner, her

grandchild, and her son had arrived at the facility.

10. The owner was bringing breakfast for the staff and

students.

11. When th e owner entered the facility, she left the

toddler outside in the care of her uncle, the owner ' s son. The

uncle had brought trash with him to place in the facility ' s

commercial trash container.

12. He walked down a lightly wooded path beside the

facili ty to the trash container.

13. The toddler did not follow him as her grandmother and

uncle intended. She turned back, entered the facility, then left

the facility, and returned to the car where Ms. Hotaling spoke to

her and brought her inside.

14. Durin g these events, which occurred in a short period

of time, the toddler was never checked into the facility or

entrusted to its care. She was in the care of her uncle and her

grandmother in her capacity as grandmother.

CONCLUSIONS OF LAW

15. DOAH has jur isdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (2012) .

16. Since the Department seeks to impose sanctions, it has

the burden of proving the allegations of the Administrativ e

Complaint by clear and convincing evidence. Dep ' t of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris

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

17. The Department charges that Richardson ' s violated the

requirement of r ule 65C - 22.001(5)(a) to maintain supervision of a

child in its care.

18. The determinative question here is: Did the Department

prove by clear and convincing evidence that the toddler

Ms. Hotaling found by the orange car in the parking lot and

brought into Ric hardson ' s was a child in the care of

Richardson ' s. The Department did not.

19. In fact, the persuasive evidence proved that the

toddler was in the care of her uncle and grandmother.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law, it is RECOMMENDED that the Department of Children and

Famil ies enter a final order dismissing the Administrative

Complaint.

DONE AND ENTERED this 1 3 th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 the

Division of Administrative Hearings

this 1 3 th day of June , 2013 .

COPIES FURNISHED:

David Wilkins, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Dep artment of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Gregory D. Venz, Agency Clerk

Department of Children and Families

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Cheryl Dianne Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830 - 7646

Carolyn Richardson

Natasha Richardson

Richardson ' s Learning Enrichment Center

1426 West Bryan t Street

Bartow, Florida 33830 - 3 411

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.