14-004539 Department Of Children And Families vs. Children's Hour Day School Status: Closed Recommended Order on Friday, January 9, 2015.

Summary: Department failed to prove factual predicates for alleged violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES ,

Petitioner,

vs. Case No. 1 4 - 4539

CHILDRENÓS HOUR DAY SCHOOL,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

November 20 , 2014, by video teleconference between sites in Miami

and Tallahassee, Florida, before Administrative Law Judge (ALJ)

Claude B. Arrington of the Division of Administrative Hearings

(DO AH).

APPEARANCES

For Petitioner: Karen A. Mil i a, Esquire

Department of Children and Families

401 Northwest Seco nd Avenue , Suite N - 1014

Miami, Florida 33128

For Respondent: Howard J. Hochman, Esquire

L aw Offices of Howard J. Hochman

7695 Southwest 104th Street , Suite 210

Miami, Florida 33156

STATEMENT OF THE ISSUE S

Whether Respondent, a day - care center, committed the

violations alleged in th e Administrative Complaint, and if so,

the penalties Petitioner should impose against Respondent.

PRELIMINARY STATEMENT

By Adminis trative Complaint dated August 15 , 201 4 , the

Department of Children and Families (Petitioner) allege d certain

facts. Based on those facts, Petitioner charged ChildrenÓs Hour

Day School ( Respondent ) with two class I violations. First, the

Administrative Complaint charged that Respondent violated

section 402.305(12)(a) 1. through 3 . , Florida Statutes , an d

Florida Administrative Code Rules 65C - 22.001(8)(b)

and 65C - 22.001(11)(a) , when the owner of the facility withheld

food from a child as a form of punishment. Second, the

Administrative Complaint charged that Respondent violated

sections 402.319(1)(a) an d 402.3055(1)(a)(b) (sic) by submitting

to Petitioner an application with a forged notarized signature.

For each violation, Petitioner seeks to impose an administrative

fine in the amount of $200.00 and to place RespondentÓs license

on probation for a per iod not to exceed six months.

Respondent timely filed with Petitioner a Petition for

Formal Administrative Hearing on September 4, 2014 . On

September 29 , 201 4 , Petitioner forwarded the matter to DOAH, and

this proceeding followed.

At the formal hearing, Petitioner presented the testimony of

Michaelyn Radcliff (a f amily services c ounselor employed by

Petitioner) , Tajah Brown Donaldson (a former employee of

Respondent), Ivanne Albarran (a former employee of Respondent who

is also a no tary public), and E.B. (the mother of S.B. and L.B.) .

Petitioner offered pre - marked E xhibits 1 , 2 (page 2 only), 3 , and

5 through 8 , each of which was admitted into evidence .

Respondent presented the testimony of Kevin Lennon

(RespondentÓs owner) and Mr. Alb arran. Respondent offered one

e xhibit, which was admitted into evidence and filed post -

hearing.

No transcript of the hearing was filed with DOAH. However,

a transcribed ÐExcerptÑ of the hearing was filed December 11,

2014. On RespondentÓs motion, the deadline for the filing of

proposed recommended orders was extended to December 12, 2014.

Thereafter, t he parties timely filed proposed recommended orders,

which have been duly considered by the undersigned in the

preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Statutes (201 4 ).

FINDINGS OF FACT

1. Petitioner is the regulatory authority responsible for

licensure and enforcement of day - care centers in Florida.

2. Respondent is a day - care center in Miami, Florida, and

currently holds child care license C11MD0340. Respondent has

operated as a day - care center since April 19, 1990. At the time

of the formal hearing, Kevin Lennon was the owner and operator of

Respondent.

3. S.B. and L.B. are young sisters who stayed at

RespondentÓs day - care center in July 2014. On July 9, 2014, one

of RespondentÓs employees gave S.B. and L.B. a small cup of

Cheez - Its as a snack. Mr. Lennon was present when the two girls

were sharing the cup of Cheez - Its. After S.B., who is the older

and bigger child, finished her share of the Cheez - Its, S.B. began

to hit her sister to take her sisterÓs share of the Cheez - Its.

Mr. Lennon separated the two girls and per mitted L.B. to eat her

share of the Cheez - Its. Mr. Lennon testified, credibly, that he

did not take the Cheez - Its from S.B. to punish S.B. Petitioner

offered no competent, credible evidence to refute Mr. LennonÓs

testimony.

4. On March 25, 2014, Petitio ner received from Respondent

an ÐApplication for a License to Operate a Child Care FacilityÑ

(the application). Mr. Lennon completed the application on

behalf of Respondent . The application contained an attestation

section that required Mr. LennonÓs sign ature to be notarized. On

March 25, 2014, Petitioner received an attestation section (first

attestation section) signed by Kevin Lennon on February 28, 2014.

The first attestation section contains Ivanne AlbarranÓs notary

seal and a signature dated Febru ary 28, 2014. Mr. Lennon

testified, credibly, that he signed the first attestation section

as Kevin Lennon. Mr. Albarran testified, credibly, that he

signed the first attestation section as the notary public.

Petitioner offered insufficient evidence to refute that

testimony.

5. The application package contains a second attestation

section that was received by Petitioner on March 28, 2014. The

second attestation section contains Mr. LennonÓs signature and a

date of March 26, 2014. The seco nd attestation section contains

Mr. AlbarranÓs notary seal and a signature dated March 28, 2014.

Mr. Lennon testified, credibly, that he signed the second

attestation section as Ð Kevin Lennon. Ñ Mr. Albarran testified,

credibly, that he signed the second attestation section as the

notary public. Petitioner offered no competent, credible

evidence to refute that testimony.

CONCLUSIONS OF LAW

6 . DOAH has jurisdiction over the subject matter of and the

parties to this proceeding pursuant to sections 120.569 and

1 20.57(1), Florida Statutes (2014 ).

7 . Petitioner has the burden of proving by clear and

convincing evidence that Respondent committed th e violations as

alleged and the appropriateness of any fine and penalty resulting

from the alleged violations. See Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987); Evans Packing Co. v. Dep't of Agric. &

Consumer Servs. , 550 So. 2d 112 (Fla. 1st DCA 1989) ; and Inquiry

Concerning a Judge , 645 So. 2d 398 (Fla. 1994).

8 . In Slomowitz v. Walker. , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court held that:

Clear and convincing evidence requires that

the evidence must be found to be credible:

the facts to which the witnesses testify 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,

withou t hesitancy, as to the truth of the

allegations sought to be established.

9 . The Administrative Complaint consists of two alleged

violations. Count I alleges that Respondent inappropriately

disciplined a child by withholding food as punishment.

Petitioner failed to prove that alleged violation.

10 . Count II of the Administrative Complaint alleges that

Respondent submitted an application for licensure with a forged

notarized signature. Petitioner failed to prove that alleged

violation.

RE COMMENDATION

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 dismissing the Administrative

Complaint.

DONE AND ENTERED this 9th day of January, 2015 , in

Ta llahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 9 th day of January , 201 5 .

COPIES FURNISHED :

Howard J. Hochman, Esquire

Law Offices of Howard J. Hochman

7695 Southwest 104th Street , Suite 210

Miam i, Florida 33156

(eServed)

Karen A. Milia, Esquire

Department of Children and Families

401 Northwest Seco nd Avenue , Suite N - 1014

Miami, Florida 33128

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399

(eServed)

Rebecca Kapusta, Interim Gen eral Co unsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

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.