13-001686 Department Of Children And Families vs. Agape Investment Group, Inc., D/B/A Agape Childcare And Family Services Status: Closed Recommended Order on Thursday, May 8, 2014.

Summary: The Department proved staff to child ratio violation and violation of requirement to maintain up to date immunization records. Recommend probation and fines.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner,

vs. Case No. 13 - 1 686

AGAPE INVESTMENT GROUP INC.,

d/b/a AGAPE CHILDCARE AND

FAMILY SERVICES

Respondent.

_______________________ _______ /

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 23, 20 13 , via video teleconference with sites in

Tallahassee and Jacksonville, Florida , before the Division of

Administrative Hearings, by its designated Admin istrative Law

Judge, Barbara J. Staros.

APPEARANCES

For Petitioner : David Gregory Tucker , Esquire

Department of Children

and Families

Post Office Box 2417

Jackson ville , Florida 3 22 11

For Respondent : Tausha Howard, pro se 1/

Agape Childca re and Family Services

542588 US Highway 1

Callahan , Florida 3 2011

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent

committed the violations as alleged in the Administrative

Complaint and, if so, what is t he appropria te penalty.

PRELIMINARY STATEMENT

On April 11 , 20 1 3 , the Department of Children and Famil ies

( the Department or DCF ) issued a n Administrative Complaint to

Respondent , Agape Investment Group, Inc., d/b/a Agape Childcare

and Family Services (hereinafter Agape ) seeking to impose an

administrative fine and revocation of RespondentÓs license for

alleged violations of Florida Administrative Code Rul e 65C -

2 2 .00 1 ( 4 ) ( b ) 2. , for fail ure to maintain proper staff - to - children

ratio ; r ule 65C - 22.006(2)(c) , for failure to maintain current

and complete immunization records; and r ule 65C - 22.006(4)(d)1. ,

for failure to maintain background screening records on one

individual . Agape disputed the allegations of the

Administrative Complaint and requested an administrative

hea ring.

The Department forwarded the request for a hearing to the

Division of Administrative Hearings (the Division or DOAH ) on or

about Ma y 1 0 , 20 1 3. The final hearing was set for July 23 ,

201 3 . The case was heard as scheduled.

At hearing, the Dep artment presented the testimony of one

witness , Tracey Flanders . The Department's Exhibits letter ed A

through C were admitted into evidence. The Respondent presented

the testimony of Tausha Howard . Respondent did not off er any

exhibits . The Department requested Official Recognition of DCF

Form CF - FSP 5316, entitled Child Care Facility Standards

Classification Summary (Form 5316). The request was granted.

At the conclusion of the presentation of evidence, there

wa s a discussion regarding an additional A dministrative

C omplaint that had just recently been referred to the Division

from DCF regarding Respondent . The instant case was held in

abeyance pending resolution of the second A dministrative

C omplaint (DOAH Case No. 13 - 2520) . Subsequently, two more

administrative complaints ( DOAH Case Nos. 13 - 4127 and 14 - 1477,

totaling four ) have been referred to the Division. 2 / During a

case management conference on April 11, 2014, it was determined

that the R ecommended O rder in this case should no longer be

delaye d and by Order dat ed April 14, 2014, the parties were

ordered to file any proposed recommended orders no later than

April 28, 2014.

A one - volume T ranscri pt was filed on A ugust 7 , 201 3 .

Petitioner filed a Proposed Recommended Order, which ha s been

consi dered in the preparation of this Recommended Order.

Respondent did not file a post - hearing written submission.

All references to statutes are to Florida Statutes (20 1 3 )

unless otherwise noted.

FINDINGS OF FACT

1. The Department of Children and Famil ie s is the agency

charged with the responsibility of licensin g child care

facilities in the S tate of Florida. § 402.305, Fla. Stat.

2. Respondent was licensed by the Department to operate a

child care facility located in Callahan , Florida.

3. Tausha Ho ward is the co - owner/director of Agape, and

has been since it opened approximately 10 years ago .

4. Tracey Flanders is a family services counselor. As a

family services counselor, Ms. Flanders is responsible for

inspecting child care facilities and fami ly child care homes.

Agape was one of the child care facilities that she inspected.

She has been a family services counselor for three years and

prior to that was a child protective investigator for DCF.

Prior to her employment with DCF, she was a presc hool teacher

for eight years , which included some supervisory

responsibilities and knowledge of compliance with DCF rules .

Out of Ratio/Improper Supervision

5 . The Administrative Complaint charged Respondent with

being out - of - ratio regarding the number of children per staff

member in violation of Florida Administrative Code Rule 65C -

22.0 0 1( 4 ) (b)2 . Specifically, the A dministrative C omplaint

alleges as follows:

During a routine inspection conducted on

March 6, 2013, DCF licensing counselor

Tracey Flander s observed that: There was

one (1) staff member supervising seven (7)

children between the ages of one (1) and two

(2) years old. A ratio of one staff for (6)

children is required.

6 . This violation is based on Ms. FlandersÓ observations

during a Marc h 6, 2013 routine inspection of Agape. She did a

walk - through of the facility and examined the childrenÓs

records. As part of her walkthrough, she went to all of the

classrooms. In each classroom, she counted the children and

inspected for cleanliness.

7 . While in the toddler room, Ms. Flanders observed the

children playing on the floor around the teacher. She counted

seven children between the ages of one to two years old being

supervised by one teacher. There was one two - year - old and six

one - year - o ld children.

8 . Ms. Flanders explained at hearing that in mixed age

groups, the required ratio of the youngest child applies. For

mixed aged groups of children between one and two years of age,

the minimum staff to child ratio is one staff member to s ix

children.

9 . Agape has a classroom for preschool children , as well

as one for the toddler children.

10. Ms. Howard, however, disagrees that there were seve n

children in the toddler room and i nsi s t ed that th ere were only

six. She believes there was so me kind of Ðmiscommunication or

oversightÑ because t he seventh child (W.) had recently Ðaged

outÑ of the toddler room and had been moved to the preschool

class. The toddler class was where W. was assigned prior to his

second birthday and reassign ment to t he preschool class . At the

time of the inspection, the preschool children were out on the

playground and came in while Ms. Flanders was present .

Ms. Howard recalls she was standing in the baby room window.

According to Ms. Howard, W. was being redirecte d from Ðbothering

the blocksÑ to go rej oin the preschool group who was having

story time. Therefore , she contends that the child was not in

the toddler room, but was being redirected into the preschool

classroom.

11. Ms. Flanders insists that Ms. Howard was not with her

when this incident happened, that the children were playing on

the floor, and that the two - year - old in question (W.) was not

moved from the toddler room to the preschool room when she was

there. Accordingly, she cited Respondent for an ou t - of - ratio

violation.

12 . Prior to the March 6, 2013 routine inspection, Agape

had previous instances of being in violation of the rati o

requirements. As a result of prior Administrative Complaint s

which included ratio violations, DCF and Respondent ent ered into

a settlement agreement in March 2013 , in which Respondent

acknowledged that there have been five Class II ratio violations

within a two - year period. Additionally, Respondent agreed that

if future ratio violations occurred, the license Ðwill agai n be

subject to suspension or revocation.Ñ The settlement agreement

also stated that Respondent would finish out its then current

probationary status through March 11, 2013, at which time Agape

would be returned to an annual license. It is assumed that

s ince the instant Administrative Complaint was dated April 11,

2013, that the license is currently on regular license status.

Immunization Form V iolation

13 . The Administrative Complaint charged Respondent with

not having required immunization forms for ch ildren in its care ,

in violation of Florida Administrative Code Rule 65C -

22.006(2)(c). Specifically, the Administrative Complaint

alleged that during the routine inspection by Ms. Flanders on

March 6, 2013, she observed that a current form 680, Florida

Ce rtification of Immunization , was missing for two children.

14 . This allegation was based upon a file review made by

Ms. Flanders which revealed that immunization records for two of

the children, H.A. and M.C., had expired. The same violation

was cited th ree previous times within a two - year period .

1 5 . On a reinspection, the centerÓs immunization records

were current.

1 6 . According to Ms. Howard , the child, H . A ., was out of

the center for a medical reason and was not enrolled in the

center at that time. However, his file was still there.

Further, she discussed this with Ms. Flanders and afterwards

wrote a statement that H . A . was not currently enrolled in the

school and placed it in his file. As for child M.C., the child

was enrolled but was no longer a tte nding the center until M.C.

obtained a current immunization record. Ms. Flanders explained

that the child care facility must inform her if a child is

enrolled but not attending. In that event, she skips that

childÓs record during her review .

Level 2 Screening Documentation

17 . The Administrative Complaint charged Respondent with a

violation of Florida Administrati ve Code Rule 65C - 22.006(4)(d)

and alleged the following:

Documentation of Level 2 screening was

missing for one (1) staff member. The

Pr eschool TeacherÓs adult son, D.W., was

observed in the classroom with children on

more than one occasion. Director stated

D.W. is at the facility one (1) to two (2)

hours a day, every other day. Licensing

Counselor previously advised provider D.W.

could not be present without passing a Level

2 screening.

18 . These charges were based on Ms. Flanders observing the

adult son (D.W.) of one of the pre school teachers sitting at the

desk in the preschool room with the children present , and the

content of a c onversation she had with Ms. Howard regarding this

issue .

19 . The re is an exception to the background screening

requirement for volunteers who work there less than 10 hours a

month . Accordingly, Ms. Flanders spoke to Ms. Howard to

determine how often D. W. was at the school. According to

M s . Flanders, Ms. Howard told her that he would come to the

daycare and wait before work every other day for an hour or two

before walking to Winn - Dixie. Ms. Flanders calculated that

every other day would be 15 days a m onth, for one or two hours

each time. Therefore, she determined that he was there more

than 10 hours a month. D.W. do es not have background screening

on file.

2 0 . The Administrative Complaint states that the same

violation was previously cited on May 14 , 2011, resulting in

Technical Assistance, making this the second Class II violation

within two years about persons caring for children without

background screening.

21 . Ms. Howard , however, denies that D.W. was ever in her

child care center that frequent ly. According to M s . Howard,

D.W.Ós family temporarily (for about a month to a month and a

half) had only one car. During that time, D.W. would come to

the center , but was only there a total of 2 hours in a month.

ÐAgain, D.W. is not in my center. HeÓs not ever been in my

center every other day. HeÓs not ever been in my center more

than 30 minutes to an hour.Ñ Moreover, Ms. Howard asserts that

when D.W. was in her center, he was not with the children but

was in a classroom where there were no children .

22. Both Ms. Flanders and Ms. Howard were credible

witnesses.

CONCLUSIONS OF LAW

23 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. This proceeding is de

no vo. § 120.57(1)(k).

24 . The Department of Children and Famil ies is the agency

charged with the responsibility of licensing child care

facilities in the S tate of Florida. § 402 .305 , Fla. Stat.

25 . Section 402.310 authorizes the Department to take

adve rse action regarding the license of the child care facility,

and reads , in pertinent part , as follows:

Disciplinary actions; hearings upon denial,

suspension, or revocation of license or

registration ; administrative fines. Ï

(1)(a) The department or local licensing

agency may impose an y 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 th e 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 any other disciplinary action imposed

under this sectio n.

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 be suspended or revoked

if periodic inspection by the departme nt 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

. . . .

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 paragraph (a), the

following factors shall be considered:

1. The severity of the violation, including

the p robability 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 harm, and the extent to

which the provisions of ss. 402.301 - 402.319

have been violated.

2. Actions taken by t he licensee to correct

the violation or to remedy complaints.

3. Any previo us violations of the licensee

or registrant . (emphasis a d ded ) .

26 . Florida Administrative Code Rule 65C - 22.010 defines

classes of violations and sets forth a framework of disci plinary

sanctions. It states , in pertinent part:

Enforcement .

(1) Definitions .

* * *

(d) ÐViolationÑ means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

* * *

2. ÐClass II violationÑ is the seco nd or

subsequent incident of noncompliance with an

individual Class II standard as described on

CF - FSP Form 5316. Class II violations are

less serious in nature th a n Class I

violations, and could be anticipated to pose

a threat to the health, safety or we ll - being

of a child, although the threat is not

imminent.

3. ÐClass III violationÑ is the third or

subsequent incident of noncompliance with an

individual Class III standard as described

on CF - FSP Form 5316. Class III violations

are less serious in natu re than either

Class I or Class II violations, and pose a

low potential for harm to chi l dren.

* * *

(2) Disciplinary S anctions.

(a) Enforcement of disciplinary sanctions

shall b e applied progressively for eac h

standard violation. In addition, provide rs

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.

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be progressively enforced as

follows:

* * *

2. Class II V iolations.

* * *

e. For the fifth and subsequent violation

of the same Class II standard, the

de partment shall issue an administrative

complaint to suspend, deny, or revoke the

license, and the department shall also issue

an administrative complaint imposing an

additional fine of $100 per day for each

violation.

* * *

4. ChildrenÓs Health Immuniz ation Records

Disciplinary Sanctions.

* * *

d. For the fourth violation of the same

Class III ChildrenÓs Health and/or

Immunization standard, the department shall

issue an administrative complaint imposing a

fine in the amount of $30 for each

violation.

27 . Section 402.305(2) reads in pertinent part :

402.305 Licensing standards; child care

facilities. Ï

* * *

(2) PERSONNEL. Ï Minimum standards for child

care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

scre ening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screen ing set

forth in that chapter.

28. A volunteer in a child care facility who assists on an

intermittent basis for less than 10 hours per month is n ot

included in the term ÐpersonnelÑ for purposes of screening if a

person who meets the screening requirement of section 402.305(2)

is always present and has the volunteer in her line of sight.

§ 402.302(3), Fla. Stat.

2 9 . Florida Administrative Code Rul e 65C - 22.006(4) sets

forth the required content of personnel records, including

Level 2 screening information and copies of training information

and credentials.

30 . Florida Adm inistrative Code Rule 65C - 22.006(2) (b) and

(c) require the child care facility to obtain for each child a

current, complete, and properly executed Florida Certification

or Immunization Form , and to keep an up - to - date version of the

form on file for as long as the child is enrolled in the

facility.

3 1 . Florida Administrative Code Ru le 65C - 2 2 .0 0 1 reads in

pertinent part as follows:

65C - 22.001 General Information.

(4) Ratios.

(a) The staff - to - child ratio, as

established in Section 402.305(4), F.S., is

based on primary responsibility for the

direct care of children, and applies at a ll

times while children are in care.

(b) Mixed age groups.

1. In groups of mixed age ranges, where

children under one - year - of - age are included,

one staff member shall be responsible for n o

more than four children of any age group, at

all times.

2. In groups of mixed age ranges, where

children one - year - of - age but under two -

years - of - age are included, one staff member

shall be responsible for no more than six

children of any age group, at all times.

3 2 . The Department has the burden to prove by clear a nd

convincing evidence the grounds for taking disciplinary action,

including revocation or denial of an application to renew an

existing daycare license. Coke v. Dep ' t of Child . and Fam .

Svc s . , 704 So. 2d 726 (Fla. 5 th DCA 1998); Dep ' t of Banking &

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

3 3 . For proof to be considered ÐÒ clear and convincing Ó

. . . the evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly remembered; the

testimony must be preci se 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 allegatio ns sought to be established.Ñ In re

Davey , 645 So. 2d 398, 404 (Fla. 1994).

3 4 . Regarding the child to staff ratio, the undersigned is

persuaded that W., the two - year - old who was with the toddlers at

the time of Ms. FlandersÓ inspection, was no longer as signed to

the toddler room , but had moved on to the preschooler room .

While the Department proved that a ratio violation occurred, it

was inadvertent, and was most likely the result of the child

going to his or her former class across the hall after comin g in

from the playground.

3 5 . As this was the sixth Class II violation within a two -

year period, the Department was authorized to issue an

administrative complaint seeking suspension, denial or

revocation. However , the recommended penalty is less severe

than what is sought from the Department.

3 6 . Regarding the immunization record issue, the

Department met their burden of proof. Although the children

were not currently attending the facility, they were still

enrolled and therefore an up - to - date health f orm was required to

be kept in each childÓs file. As this was the fourth Class III

violation within a two - year period, t he DepartmentÓs imposition

of a $ 30 per day fine pursuant to Florida Administrative Code

Rule 65C - 22.010(2) is appropriate here.

3 7 . T he Department did not meet its burden in proving the

allegations regarding background screening for D.W. At hearing,

Ms. Howard refuted Ms. FlandersÓ recollection of Ms. HowardÓs

statements to her regarding how frequently and for what duration

D.W. was at the child care center. The undersigned cannot ,

without hesitation , find that D.W. was at the facility

frequently enough to require that a background screening be done

and on file for D.W. Moreover, the Department did not establish

that D.W. meets the de finition of volunteer as contemplated by

section 402.302(3) in that there is no evidence that he was

assisting at the facility.

3 8 . Subsequent to the hearing, Respondent hired a

Qualified Representative, who has also been accepted as

RespondentÓs Qualifie d Representative for the subsequent cases

transmitted by the Department regarding Respondent. While the

Department seeks revocation, placing Respondent back on

probationary status pending the outcome of those subsequent

cases, so that all facts may be pre sented and so Respondent has

the opportunity to be represented in the latter proceedings , is

more appropriate .

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is RECOMMENDED that the Department of Children and Famil ies

enter a fi nal order placing RespondentÓs license on probation

until the related case s involving Respondent have been heard and

final orders entered ; and imposing a fine of $100 per day for

one day, and $30 per day for eight days, for a total of $340 .

DONE AND ENTER ED this 8 th day of Ma y , 20 1 4 , in Tallahassee,

Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8 th day of Ma y , 20 1 4

ENDNOTE S

1/ Agape retained a Qualified Representative after the hearing.

He did not appear at the hearing.

2/ During the telephonic case management conference, counsel for

the Department indicated that there were potentially two

additional administrative complaints against Respondent yet to

be referred to DOAH.

COPIES FURNISHED:

David Gregory Tucker , Esquire

Department of Children

and Famil i es

Post Office Box 2417

Jacks onville , Florida 32211

Tausha Howard

Agape Childcare and Family Services

542588 US Highway 1

Callahan , Florida 3 20 11

Gregory Venz , Agency Clerk

Department of Children

and Famil i es

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Mike Carroll , Secretary

Department of Children

and Famil i es

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Marion Drew Parker, General Counsel

Department of Children

and Famil ies

Building 2, Room 20 4

13 17 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit 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 issu e the Final Order in this case.