14-004042 Department Of Children And Families vs. Lil' Angels Childcare, Llc Status: Closed Recommended Order on Tuesday, December 9, 2014.

Summary: Petitioner did not prove violations alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 14 - 4042

LIL' ANGELS CHILDCARE, LLC,

Respondent.

_______________________________/

RECOMMENDED ORDER

On November 5, 2014, Administrative Law Judge Lisa Shearer

Nelson of the Florida Division of Administrative Hearings

conducted a duly - noticed hearing in this case in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Neshia Oglesby, Director

LilÓ Angels Childcare, LLC

1087 Mason Avenue

Daytona Beach, Florida 32117

For Respondent: Jane Almy - Loewinger, Esquire

Assistant General Counsel

Department of Children and Families

210 North Palmetto Avenue , Suite 430

Daytona Beach, Florida 3211 4 - 3284

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

the provisions of Florida Administrative Code Rule 65C -

22.004(3)(c), as alleged in the Administrative Complaint, and if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 23, 2014, Petitioner, the Department of Children

and Families (Petitioner or the Department), filed an

Administrative Complaint against Respondent, LilÓ Angels

Childcare, LLC (Respondent or LilÓ Angels), alleging that

Respondent violate d the provisions of rule 65C - 22.004(3)(c), by

failing to follow written instructions for dispensing an E pi - P en

to a child with a known peanut allergy. Respondent disputed the

allegations in the Administrative Complaint and requested a

hearing. On August 29, 2014, the matter was referred to the

Division of Administrative Hearings for the assignment of an

administrative law judge.

By notice issued on September 3, 2014, the case was

scheduled for October 21, 2014. At the request of the parties,

the case was continued and re - scheduled for November 5, 2014, and

proceeded as scheduled. Petitioner presented the testimony of

Sally Ackerman, Sarah Amarasinghe, and Patricia Medic o .

PetitionerÓs Exhibit 3 was admitted into evidence. PetitionerÓs

Exhibits 1 and 2 were offered but not accepted. 1/ Respondent

presented the testimony of Neshia Oglesby and Brandi Everett, and

offered no exhibits.

The T ranscript of the proceedings was filed with the

Division on November 18, 2014 . Petitioner and Respondent filed

their P roposed Recommended Order s on November 24 and December 1,

2014, respectively . All references to the Florida Statutes are

to the 2013 codification unless otherwise specified .

FINDING S OF FACT

1. LilÓ Angels is a child - care facility licensed pursuant

to ch apter 402, Florida Statutes. It has been open under the

direction of Neshia Oglesby for approximately seven years.

2. At the time of the incident giving rise to the

Administrative Complaint in this case, J . A . was a five - year - old

child attending Lil Ó Ange ls. He had attended the facility Ðoff

and onÑ since he was a toddler.

3. J . A . suffers from a host of allergies, including foods

such as eggs, milk, peanuts, peaches, and hot dogs, and other

substances such as cockroaches, grass, and pet dander.

4. J . A . Ós file at LilÓ Angels contained several forms,

including a Department of Health Child Care Food Program ÐMedical

Statement for Children with Disabilities and Special Dietary

ConditionsÑ form, dated January 10, 2011, that identified eggs,

milk, peanuts, and hot dogs as foods to be omitted from his diet.

It did not li st any disabilities. A lthough the form required

that any medical condition that restricts the childÓs diet be

identified , no medical condition was listed .

5. His file also contained Author ization to Administer

Medication forms, dated January 12, 2012, for the administration

of an Epi - Pen JR (Epi - Pen), and Benadryl Elixir; Emergency Care

Plans for the administration of certain medications; and

information regarding his medical history as par t of LilÓ Angel s Ó

enrollment form.

6. The authorization to administer the Epi - Pen stated,

Ðsevere allergic reaction to ingestion of nuts/peanuts/raw

eggs/?milk.Ñ Similarly, the Emergency Care Plan with respect to

use of the Epi - Pen stated the followin g:

If you see this: Do this:

1. Itching, rash, hives after 1. Give Benadryl 2.5 ml

ingestion of allergic foods PO . . . mild allergic

Reaction

2. Difficulty breathing, color 2. Give Epi - Pen JR

change after ingestion of call parent

alle rgic foods.

7. The portion of the Enrollment Form containing J.A.Ós

medical history indicated that he was allergic to Ðall nuts, tree

nuts, peanuts, coconuts etc., allergic to eggs, allergic to

peaches.Ñ Under the allergies heading, the form stated that it

was permissible to Ðgive a little milk products, eggs, cheese,Ñ

but no pork or peanuts.

8. Nothing on any of the forms stated that J.A. was so

allergic to peanuts that he could not be around them; only that

he could not eat them.

9. LilÓ Angels had at least one other child with a peanut

allergy. Her allergy is apparently limited to ingestion.

10. LilÓ Angels at times provides craft projects for the

children that involve the use of peanut butter. J.A. has

participated in these projects in the past , with precautions, and

had no apparent ill - effects from them.

11. On Friday, January 31, 2014, the children in J.A.Ós

class at LilÓ Angels began an art project making bird feeders

with pine cones, peanut butter , and birdseed. Miss Brandi was

the instruct or working with the children. The other children

then had a snack with peanut butter and apples while J.A. had

apples and caramel. There were no reports of J.A. suffering any

ill effects after this activity.

12. On Monday, February 3, 2014, the childr en worked on

finishing the project. Ms. Brandi was the only person who

testified that was present during the Monday morning activities,

and her tes timony was detailed and persuasive , and is credited.

13. There were approximately 11 children in the group.

Ms. Brandi gave all of the children their pine cones, and because

of J.A.Ós allergy, she sat with him during the project. Once

everyone had their pine cones, she had J.A. put on gloves, and

then let everyone else get their peanut butter. Once the other

children got their peanut butter, there was just a small amount

left. Ms. Brandi then put a small amount of peanut butter on a

spork, which she then handed to J.A. , and let him spread the

peanut butter on his pine cone using the spork. Ms. Brandi, who

w as sitting with J.A. and assisting him because of his allergies,

was adamant that he did not eat any peanut butter and her

testimony is credited.

14. Because there was very little peanut butter for J.A. to

use, he was the first child to wash his hands and go to the rug

for book time. While he was on the rug, the other children

continued to work on their projects. Once they finished, the

other children washed their hands, and joined J.A. on the rug for

book time. Ms. Brandi then wiped down the tables, us ing soap and

water followed by bleach and water, and cleaned the bathrooms.

It is unclear from the record, but it appears that she cleaned

while the children were having book time.

15. After book time, the children lined up and got ready to

go outside, w here they played a game that involved a lot of

chasing each other around the playground. J.A. participated in

the activity, and the playground time lasted approximately 45

minutes. After the playground time, the children lined up to get

some water, then went inside to wash their hands and sit at the

table. J.A. was near the front of the line to wash his hands,

and sat down at the table. Ms. Brandi noticed at this point that

he was sniffling and scratching his eyes. She did not see any

swelling. Ms. Br andi asked him if he was okay, and J.A. said,

Ðno.Ñ Ms. Brandi then contacted Neshia Oglesby, the daycare

centerÓs director, who took J.A. out of the classroom. It was

approximately 11:00 a.m. at this point.

16. Ms. Oglesby called J.A.Ós mother, but was unable to

reach her. She then called Sally Ackerman, J.A.Ós grandmother,

and told her that she believed J.A. had an allergic reaction.

Ms. Ackerman had to unload items from her car at her place of

business so as to have room to transport J.A., and arriv ed at the

daycare at around 11:30. By this time, J.A. was upset and had

been crying. Ms. Ackerman described him as red, itchy, and

swollen. It was also at least one and a half hours since the

craft activity.

17. J.A. is a shy, reserved child, and was w earing long

pants because it was cold outside. Ms. OglesbyÓs testimony that

he did not want to pull down his pants to allow her to administer

the Epi - Pen is credited. Ms. Ackerman acknowledged that J.A. did

not want Ms. Oglesby to pull down his pants, an d that he probably

was more comfortable when Ms. Oglesby turned her head to give him

some privacy. Instead of Ms. Oglesby administering the Epi - Pen,

she read the directions to Ms. Ackerman and walked her through

the administration of the device.

18. All of the workers at LilÓ Angels had been trained in

th e use of an Epi - Pen, but some , including Ms. Brandi, had never

actually used one. Ms. Oglesby had used an Epi - Pen in the past,

but did not want to here because J.A. is very shy and was already

very upset . After the Epi - Pen was administered, J.A. started to

improve immediately. His mother then arrived and took him to the

emergency room for evaluation.

19. Ms. Oglesby called J.A.Ós mother after the incident to

make sure he was alright. However, J.A. nev er returned to LilÓ

Angels. J.A.Ós mother sent a n unsigned note on hospital

letterhead to the facility in dicating the need to clean all

surfaces to e nsure the removal of any peanut residue, and to make

sure that J.A. was not in the presence of peanuts or peanut oils.

LilÓ Angels had already cleaned the surfaces, and engaged in

retraining of its staff, including having a physician whose child

attended the daycare come speak to the staff about peanut

allergies.

20. Pat Medico is the family services counsel or who

inspects LilÓ Angels for the Department. She investigated the

incident involving J.A. in response to a complaint received by

the Department from the Early Learning Coalition, who apparently

received a complaint from J.A.Ós parent. She spok e to

Ms. Oglesby and Ms. Dea, the assistant director of the daycare.

Ms. Dea was not present on February 3, and Ms. Oglesby was not in

the room during the craft project. Ms. Dea, who did not testify

at hearing, related similar information to that provide d by

Ms. Oglesby and Ms. Brandi that J.A. had been in the same area as

peanuts in the past with no problems.

21. Ms. Medico was concerned that the daycare allowed J.A.

to participate in an activity involving peanuts, saying that a

peanut allergy can become airbor ne Ðat any time.Ñ She believed

that the doctorsÓ use of the word ÐingestionÑ did not lead her to

believe that only an ingested peanut can cause a problem for the

child. However, no evidence wa s provided to indicate that

Ms. Medico has the qualifications to express what is clearly an

expert medical opinion regarding the scope of peanut allergies.

No doctor who treated J.A. and no one specializing in the

treatment of allergies testified in this proceeding. Therefore,

the scope of J.A.Ós allergy and the ab ility (or lack thereof) of

the allergy to become airborne has not been established.

22. No information regarding the instructions on the Epi -

PenÓs original container label or the Epi - PenÓs printed

manufacturer label was offered into evidence.

23. Ms. Me dico was also disturbed that Ms. Oglesby rejected

her suggestion that the facility become a Ðpeanut - free facility,Ñ

feeling that her reaction to the suggestion ( a statement that

they were not going to do that) was indicative of not taking the

issue serious ly. Ms. Oglesby, on the other hand, stated that she

felt it was misleading to advertise as a peanut - free environment

when so many foods are processed in environments where peanuts

are also processed , and the facility could not guarantee that

substances pr ocessed in these environments are not present .

24. Ms. Oglesby also believes that the reaction may have

been to something other than peanut butter, given both the number

of allergies J.A. suffers and the length of time between the

craft project and J.A.Ós first visible symptoms. Ms. Oglesby has

a valid point: there is no way to know on the record presented

what exactly caused J.A.Ós symptoms. However, even assuming for

the moment that the allergic reaction was to peanut butter, there

was nothing to aler t the daycare at the time of this incident

that J.A. could suffer from the simple exposure, as opposed to

ingestion, of peanuts.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2014). This proceeding is de novo. § 120.57(1)(k),

Fla. Stat.

26 . This is a disciplinary procee ding against RespondentÓs

child - care facility license, pursuant to section 402.31 0(2) ,

Florida Statutes.

27 . Petitioner, as the party seeking to impose discipline,

has the burden to prove the allegations in the Administrative

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) ; Coke v. DepÓt of

Child. a nd Fam. Servs. , 704 So. 2d 726 (Fla. 5th DCA 1998) .

28 . Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnes ses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesita ncy, 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 , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). ÐAlthough this

standard of proof may be met where the evidence is in c onflict, it

seems to preclude evidence that is ambiguous.Ñ Westinghouse

Elect. Corp. v. Shuler Bros. , 590 So. 2d 986, 989 (Fla. 1991).

29 . The Department is the agency charged with the

responsibility of licensing child - care facilities in the State of

Flo rida. §§ 402.301 - 402.319, Fla. Stat. The Department is

charged in section 402.305(1) to establish, by rule, licensing

standards to address the health, sanitation, safety and physical

surroundings; the health and nutrition; and the child development

needs of all children in child care. The relevant rules

pertaining to this proceeding are located in Florida

Administrative Code Rule Chapter 65C - 22.

30 . Section 402.310 authorizes the Department to take

disciplinary action against the license of a child - care facility

for violations of the any provision of sections 402.301 - 402.319 or

the rules adopted thereunder, and authorizes the Department to

impose an administrative fine, to convert the license to probation

status, and to deny, suspend, or revoke the licen se.

31 . The factual allegations contained in the Administrative

Complaint state the following:

3. D uring a Routine Inspection on

February 12, 2014, licensing counselor Pat

Medico, determined that:

Child J.A. was known to have a peanut

allergy and was allowed to participate in an

activity with peanut butter. The facility

did not follow written instructions for

dispensing an epi - pen, in that that owner

could not find the epi - pen when the child

developed watery eyes and began scratching

his face. The e pi - pen was not administered

until the grandmother arrived at least 30

minutes after the incident. The

owner/director admitted she did not know how

to use the epi - pen. Doctor E.B. at the

Halifax Health Medical Center stated that

this is a severe life thre atening allergy

and this child may not be in the same room

with any peanuts or peanut products or oils.

The Doctor stated that this child cannot

even interact with children who have been

involved in activities that use peanuts.

There is a risk of serious harm to this

child.

32 . Based upon these factual allegations, the

Administrative Complaint asserts that Respondent has violated

Florida Administrative Code Rule 65C - 22.004(3)(c), which states:

(3) Medication. Child care facilities are

not required to give medication; however, if

a facility chooses to do so, the following

shall apply:

* * *

(c) Prescription and non - prescription

medication brought to the child care

facility by the custodial parent or legal

guardian must be in the original container.

Prescription medication must have a label

stating the name of the physician, childÓs

name, name of the medication, and medication

directions. All prescription and non -

prescription medication shall be dispensed

according to written directions on the

prescr iption label or printed manufacturerÓs

label.

33 . Petitioner did not prove the allegations in the

Administrative Complaint by clear and convincing evidence .

34 . With respect to the facts alleged in the Administrative

Complaint, Petitioner proved simply th at J.A. had a peanut

allergy ; that J.A. participated in a craft project involving

peanut butter but did not eat any; and that LilÓ Angels had

instructions to use the E pi - P en upon ingestion of peanuts, as

opposed to exposure. Petitioner did not present the testimony of

any health care practitioner to establish that J.A. had an allergy

to all exposures to peanuts, and no expert testimony that would

establish that an allergy to peanuts could change from ingestion

to exposure at any time. While that assumptio n on the part of

Petitioner was apparent at hearing, there simply was no admissible

evidence to support the assumption. Indeed, while the

Administrative Complaint specifically referenced statements by a

physician regarding J.A.Ós allergy, that physician d id not

testify.

35 . Moreover, because licensing statutes are penal in

nature, they are strictly construed in favor of the licensee.

Elmariah v. DepÓt of ProfÓl Reg. , 574 So. 2d 164, 165 (Fla. 1 st

DCA 1990); Taylor v. DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784

(Fla. 1 st DCA 1988). Disciplinary statutes and rules must be

construed in terms of their literal meaning, and the language used

may not be expanded to broaden its application. Beckett v. DepÓt

of Fin. Servs. , 982 So. 2d 94, 99 - 100 (Fla. 1 st DCA 2008 ); Dyer v.

DepÓt of Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1 st DCA 1991).

Here, the only rule violation alleged addresses the administration

of medication. It does not address whether children with

allergies should be allowed to participate in activi ties involving

items a child cannot safely ingest.

36 . The specific rule violation alleged requires that

medication shall be dispensed Ðaccording to written directions or

prescription label or printed manufacturerÓs label.Ñ None of

these items were of fer ed into evidence. Absent the se items, the

only evidence presented regarding the use of the Epi - Pen was the

Authorization to Administer Non - Prescription Medication and

Emergency Care Plan forms for J.A. on file with LilÓ Angels. In

each of these forms, au thorization to give the Epi - Pen was limited

to administration following ingestion of certain foods, including

peanuts. Under these facts, it cannot be established that LilÓ

Angels failed to administer the Epi - Pen in accordance with written

instructions , l et alone written instructions specified in the

rule .

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 dismissing the Administrative

Complaint a gainst Respondent.

DONE AND ENTERED this 9th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalach ee 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 9th day of December , 2014 .

ENDNOTE

1/ PetitionerÓs Exhibit 1 is the Administr ative Complaint in this

case. Petitioner could identify no evidentiary basis for

offering the exhibit, which is simply the charging document in

the case. PetitionerÓs Exhibit 2 is labeled as a composite

exhibit of J.A . Ós medical records (the child whose allergy is at

issue in this case) , and consists of what purport to be lab

results from LabCorp, patient records from a treating physician,

and records from Halifax Health emergency department. However,

no person from any of these entities testified and th ere was no

testimony or documentation establishing the criteria identified

in section 90.80 3(6), Florida Statutes, to admit the documents as

business records from the various entities from which they

originated. Inasmuch as the records constitute hearsay not

fall ing within an exception identified in section 90.803, the

statements therein cannot form the basis for a finding of fact.

COPIES FURNISHED:

Jane Almy - Loewinger, Esquire

Department of Children and Families

210 North Palmetto Avenue , Suite 430

Day tona Beach, Florida 32114 - 3284

(eServed)

Neshia Nicole Oglesby

Lil' Angels Childcare, LLC

1087 Mason Avenue

Daytona Beach, Florida 32117

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevar d

Tallahassee, Florida 32399

(eServed)

Rebecca Kapusta, Interim General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children a nd 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.