15-000777 Project Esteem Of Leon County vs. Department Of Children And Families Status: Closed Recommended Order on Friday, October 30, 2015.

Summary: The evidence did not show that Petitioner was entitled to exemption from licensure as a child care facility, even though the Department's unadopted limitation to rule not enforceable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROJECT ESTEEM OF LEON COUNTY , )

)

Petitioner , )

)

vs. ) Case No. 15 - 0777

)

DEPARTMENT OF CHILDREN AND )

FAMILIES , )

)

Respondent . )

)

RECOMMEN DED ORDER

Pursuant to notice, a final hearing was conducted in this

case before Administra tive Law Judge Diane Cleavinger of the

Division of Administrative Hearings (DOAH) on July 9 , 2015 , in

Tallahassee , Florida .

APPEARANCES

For Petitioner: Andrew DeGraffenreidt, III, Esquire

Andrew DeGraffenreidt, LLC

319 Clematis Street , Suite 602

West Palm Beach, Florida 33401

For Respondent: Camille Larson , Esquire

Northwes t Region

Department of Families and Children

2383 Phillips Road, Room 230

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is exempt from

licensure as a child care facility.

PRELIMINARY STATEMENT

By letter s dated December 23, 2014 , and Ja nuary 8, 201 5 ,

the Respondent Department of Children and Families (Department ,

DCF or Respondent) notified Petitioner, Project Esteem of Leon

County (Project Esteem or Petitioner ) , that its request for an

exemption from licensure as a child care facility w as denied .

Petitioner disagreed with the DepartmentÓs decision and timely

request ed a formal administrative hearing.

At the final hearing, the Department presented the

testimony of three witnesses and offer ed one exhibit , numbered

E xhibit 8 , which was a dmitted into evidence . Petitioner did not

call additional witnesses but examined each of RespondentÓ s

witnesses. Additionally , 19 J oint E xhibits numbered 1 - 6, 12 ,

14, 17 - 23 , and 25 were admitted into evidence.

The Transcript of the hearing was filed on July 27, 2015.

After the hearing, Petitioner filed a Proposed Recommended Order

on August 4, 2015. Likewise, t he Department filed a Propose d

Recommended Order on the same date .

FINDINGS OF FACT

1. Petitioner, Project Esteem, operates a program that

offers after - school tutoring and academic enrichment for

children in k in dergarten to fifth grade and ninth to twelfth

grade in Tallahassee, Florida. It is funded by a 21st Century

Grant as a program to provide activities and supervision to

children in lo w - income neighborhoo ds. The 21st Century Grant

p rogram is facilitated through the Florida Department of

Education . T here are several academic and programmatic

requirements for a program that receives this type of

educational funding from the Department o f Education .

2. In July 2013, the Department granted Petitioner an

exemption from licensure and recognized PetitionerÓs program as

a strictly instructional Ðafter school programÑ pursuant to

Florida Administra tive Code Rule 65C - 22.008(2)(c)2 . At the

ti me, meals were not served at the program site.

3. The Department based its decision on a Child Care

Licensure Survey completed by Project Esteem which indicated

that activities in the program would be Ðexclusively

academic/instructional activitiesÑ and that only Ðindividually

wrapped snacks would be provided.Ñ Additionally, the survey

indicated that the program would operate for less than four

hours and that Ð [s] tudents could enter and leave the program

without any supervision . Ñ

4. In December 2014 a n updated questionnaire was used by

the Department to make licensing determinations. For reasons

not related to the Department and not relevant here, Petitioner

completed the 2014 survey and submitted it to the Department for

its review. Based on that su rvey, a review of PetitionerÓs

website and other information, the Department denied Petitioner

an exemption from licensure. The Department concluded that

Petitioner did not meet the exemption criteria for after school

programs contained in Florida Adminis trative Code Rule 65C -

22.008(2)(c) 2 . and 3 . for Ðstrictly instructional or

academic/tutorial , Ñ non - meal programs , unsupervised entry and

exit , and USDA Afterschool Meal Program (AMP) optional programs .

5. At the time of the hearing, the program was locate d in

space provided by the New Mount Zion AME Churc h . Other than

providing spac e, the church was not affiliated with or an

integral part of the operation of PetitionerÓs program. As

such , the program was not exempt as a n integral part of a church

under s ection 402. 316, Florida Stat utes (2015) .

6. Project Esteem operated three and one - half hours from

3:00 p.m. to 6:30 p.m., after school and for extended hours

during school holidays and summer months. Ms. Stephanie McKoy

was the d irector of the program , a nd Ms. Adrienne Hampton -

Webster was the on - site c oordinator for the program.

7. The evidence demonstrated that the program at Project

Esteem was Ðstrictly instructional or academic/tutorial in

natureÑ and operated very similar to a school with class per iods

and field trips . In fact , the clear intent of the prog ramÓs

owner and director was not to be a day care facility, but to

function as an educational enrichment facility. 1/

8. Attendance and student progress were required to be

tracked for the 21st Century Grant p rogram and sign in and out

logs were used daily for that purpose . Staff met students at

the bus and checked them in. The evidence was not clear that

safety was the reason Petitioner used such logs , albeit the logs

did provide a safety bene fit. Older students , whose attendance

was logged and of which there were only a few, were free to come

and go. On the other hand, e lementary students, which were the

bulk of PetitionerÓs students, were required to be signed out by

an authorized adult as a safety measure for the children . Such

children were prevented from leaving unless an au thorized person

signed them out and were clearly under the control and

supervision of Project Esteem. Additionally, Petitioner, like a

school, gathered health inform ation and kept it on file for each

student to ensure all health and safety needs were met for the

children while at Project Esteem Ós program . Indeed, the website

for Project Esteem, indica ted that the program wa s designed to

Ðhelp working parents Ñ by prov iding a safe environment for

students during non - school hours or periods when school is not

in session. As such, supervision was provided by PetitionerÓs

staff much like a school provides . Under the DepartmentÓ s rule ,

a comparison of the various exemptio ns demonstrated that safety

or supervisory services during the time a student was at

PetitionerÓs facility , was not the defining criteria for

determining if a program was an after - school program exempt from

licensure , since many such programs offer some su pervision and

control for programmatic and tort liability reasons . Under the

DepartmentÓs rule , supervision and control over a childÓs entry

and lea ving the facility was one of many criteria distinguishing

certain types of after - school programs defined in subsections

(2)(c)2. (supervised programs) and (2)(c)3. (unsupervised entry

and exit programs) of r ule 65C - 22.008(2)(c) . However, s ince

supervision of the students Ó entering and leaving the program

was provided by Project Esteem, Petitioner did not meet the

requirements of r ule 65C - 22.008(2)(c) 3 . for unsupervised

programs. Therefore the DepartmentÓs denial of the exemption

delineated in subsection (2)(c) 3 . of the r ule should be upheld.

9. In its program, Project Esteem provided a variety of

academic p rograms for its students, including math, English and

music. Further , it provided instruction in activities , such as

computing, drumming, dance/fine arts, physical education and

karate; tutoring in specific subject area s ; personal

enrichment/character dev elopment; outdoor recreation; homework

assistance; summer field trips; and snac ks and meals . The

equipment list for the program listed flag s for football, dodge

balls, jump ropes, pogo sticks , and recorders (a musical

instrument) . Such equipment was used for instruction in those

activities , but also sometimes incorporated academic

instruction . These were not strictly music lessons or math

lessons; instead , activities were laye red so that instruction

and academic s were provided at the same time. For exam ple,

PetitionerÓs lesson plan involving a drum circle was done for

the purpose of teaching the children how to play the drum , but

also to teach them the academic subjects of music (rhythms and

beats) and math (counting) . The evidence did not demonstrate

t hat such equipment was used for free - time play. In fact, there

was no evidence that demonstrated such equipment was used

outside instructional or academic activities , irrespective of

whether such activities were layered or not . Similarly, field

trips for academic or instructional purposes are not prohibited

by the rule.

10. Meals were contracted to be provided to the students

at Project Esteem by Juvenile Transition Team, the non - profit

parent company of Project Esteem also directed by Ms. McKoy .

The me als provided complied with USDA A M P. However, Project

EsteemÓs staff served the meals at its program and had several

employee positions designated for such purpose . The evidence

was not clear that such staff prepared the meals. However, the

service of t he meals by Petitioner disqualified it from

exemption under r ule 65C - 22.008(2)(c) 2 . and, g iven these facts,

the DepartmentÓs denial of the exemption should be upheld.

11. There was some evid ence that the Department narrowed

the scope of r ule 65C - 22.008 ( 2)(c) by ÐinterpretingÑ r ule 65C -

22.008(2)(c)2 . to exempt only programs li ke a ballet or dance

school where a child goes after school for instruction in balle t

for 30 minutes to an hour and then leave s . 2/ Further, the

Department narrowed the meaning of an Ðacademic/tutorialÑ

program to a program that offe red one - on - one instructi on in a

certain topic or subject area . The Department felt PetitionerÓs

manner of teaching or instructing in multiple areas at the same

time was prohibited by subsection ( 2 )(c)2. o f its r ule.

However, t he language of subsection (2)(c) 2 . of the r ule does

not prohibit layering or instructing in more than one subject at

a time , but only requires that program ÐactivitiesÑ be Ðstrictly

instructional or academic/tutorialÑ in Ðnature . Ñ T his narrowing

of the language of the rule was not simple interpretation of the

rule, but the implementation of policy not otherwise adopted by

the agency. Unadopted policy cannot be enforced by an agency.

As such , PetitionerÓs method of teaching, tutorin g or

instructing in more than one subject area at a time is not

prohibited by subsection (2)(c)2 . of the r ule. However, as

indicated earlier, the serving of meals does disqualify

Petitioner from exemption under subsection (2)(c) 2 . of the r ule .

Therefore, g iven these facts, the DepartmentÓs denial of the

exemption should be upheld .

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . §§ 120.569 and 120.57(1), Fl a. Stat . (2015)

13. Chapter 402 , Florida Statutes, requires the Departm ent

to administer a program for licensure of child care facilities .

As part of its program t he Department is also responsible for

determining whether a facility caring for children qual ifies for

exemption from licensure or if licensure or registration as a

child care facility is required. § 402.305(1)(c), Fla. Stat.

14. Section 402.302 broadly defines the terms child care

and child care facility. The s ection states in relevant part:

( 1) ÐChild careÑ means the care,

protection, and supervision of a child, for

a period of less than 24 hours a day on a

regular basis, which supplements parental

care, enrichment, and health supervision for

the child, in accordance with his or her

individual needs, and for which a payment,

fee, or grant is made for care.

(2) ÐChild care facilityÑ includes any

child care center or child care arrangement

which provides child care for more than five

children unrelated to the operator and which

receives a paymen t, fee, or grant for any of

the children receiving care, wherever

operated, and whether or not operated for

profit. The following are not included:

(a) Public schools and nonpublic schools

and their integral programs, except as

provided in s. 402.3025 ;

(b) Summer camps having children in full -

time residence;

(c) Summer day camps . . . .;

15. Additionally, s ection 402.316 provides an exemption

for church programs. The statute states in relevant part:

(1) The provisions of ss. 402.301 - 402.319 ,

except for the requirements regarding

screening of child care personnel, shall not

apply to a child care facility which is an

integral par t of church . . . .

16. Section 402.305 establishes the criteria for the

DepartmentÓs l icensing standards. It states, in pertinent part:

(1) LICENSING STANDARDS. The department

shall establish lic ensing standards that

each licensed child care facility must meet

regardless of the origin or source of the

fees used to operate the facility or the

type of children served by the facility.

* * *

(c) The minimum standards for child care

facilities shal l be adopted in the rules of

the department and shall address the areas

delineated in this section. The department,

in adopting rules to establish minimum

standards for child care facilities, shall

recognize that different age groups of

children may requi re different standards.

The department may adopt different minimum

standards for facilities that serve children

in different age groups, including school -

age children. The department shall also

adopt by rule a definition for child care

which distinguishe s between child care

programs that require child care licensure

and after - school programs that do not

require licensure. Notwithstanding any

other provision of law to the contrary,

minimum child care licensing standards shall

be developed to provide for r easonable,

affordable, and safe before - school and

after - school care. After - school programs

that otherwise meet the criteria for

exclusion from licensure may provide snacks

and meals through the federal Afterschool

Meal Program (AMP) administered by the

De partment of Health in accordance with

federal regulations and standards. The

Department of Health shall consider meals to

be provided through the AMP only if the

program is actively participating in the

AMP, is in good standing with the

department, and th e meals meet AMP

requirements. Standards, at a minimum,

shall allow for a credentialed director to

supervise multiple before - school and after -

school sites.

Section 402.3045 also reiterates the DepartmentÓs duty to draft

rules that distinguish between chi ld care that is subject to

licensure and after - school programs that are not subject to

licensure. Neither statute defines the terms Ðafter - school

careÑ or Ð after - school programs.Ñ

17. In an attempt to identify exempt after - school

programs , the Department adopted Florida Administrative Code

Rule 65C - 22.008 (2) for school - age children Ð at least five years

of age by September 1st of the beginning of the school year and

who attend kindergarten through grade five. Ñ The r ule states in

relevant part :

(c) An ÐAf ter School ProgramÑ serving

school - age children is not required to be

licensed if the program meets one of the

following criteria, and complies with the

minimum background screening

r equirements . . . .

* * *

2. Program provides only activities that

ar e strictly instructional or

tutorial/academic in nature. The program

cannot provide any services beyond its

regular instructional and tutorial/academic

activities, and cannot serve or prepare

meals. The program may choose to provide

drinks, snacks, and v ending machine items

that do not require refrigeration. Some

examples of these programs include, but are

not limited to, computer class; ballet;

karate; gymnastics; baseball, and other

sports; or

3. Program meets all of the following

criteria:

a. Oper ates for a period not to exceed a

total of four hours in any one day; however,

the program may extend to providing services

before school, on teacher planning days,

holidays, and intercessions that occur

during the school districtÓs official

calendar year; and

b. Allows children to enter and leave the

program at any time, without adult

supervision; and

c. Does not provide any transportation,

directly or through a contract or agreement

with an outside entity, for the purpose of

field trips, during the h ours of operation;

and

d. Does not serve or prepare any meals,

except those provided through the USDA

Afterschool Meal Program (AMP) administered

by the Florida Department of Health. The

Department will consider meals to be

provided through the AMP only if the program

is actively participating in the AMP, is in

good standing with the Department of Health,

and the meal meets AMP requirements.

Programs not participating in the AMP may

choose to provide drinks, snacks, and

vending machine items that do not require

refrigeration; or . . . .

18. The Rule was promulgated by the Department to allow

for exemption from licensure for certain programs that meet the

criteria for an Ðafter school program.Ñ As indicated, the

Department narrow ed the scope of r ule 65 C - 22.008 (2)(c) by

ÐinterpretingÑ r ule 65C - 22.008(2)(c)2 . to exempt only programs

li ke a ballet or dance school , where a child goes after school

for instruction in balle t and then leave s . Further, the

Department narrowed the meaning of an Ðacademic/tutoria lÑ

program to a program that offe red one - on - one instructi on in a

single topic or subject area . However, neither the statute nor

th e language of the r ule prohibit ed layering or instructing in

more than one subject at a time.

19. The DepartmentÓs interpr etation of the statutes it

administers and over which it has jurisdiction is afforded wide

discretion. Cone v. State, Dep Ó t of Health , 886 So. 2d 1007,

1009 (Fla. 1st DCA 2004). A s the court stated in Republic

Media, Inc. v. Dep Ó t of Transp. , 714 So. 2d 1203, 105 (Fla. 5th

DCA 1998):

an agency is afforded wide discretion in the

interpretation of a statute which it is

given the power and duty to administer. Its

construction of the statute will not be

overturned on appeal unless its clearly

erroneous.

2 0. Moreover, even if a c ourt takes issue with the

agencyÓs interpretation of a statute, Ðit shall not substitute

its judgment for that of the agenc y on an issue of discretion.Ñ

§ 120.68(7), Fla. Stat. Natelson v. DepÓt of Ins. , 454 So. 2d

31 (Fla. 1st D CA 1984). See Chevron U.S.A. v. Natural Res. Def.

Council, Inc. , 467 U.S. 837, 844 Î 845 (1984) ; and Pershing

Industries , Inc. v. DepÓt of Banking and Fin . , 591 So. 2d 991

( Fla. 1 st DCA 1991 ) . See also Bowles, Price AdmÓr v. Seminole

Rock and Sand, Co. , 32 5 U.S. 410, 413 Î 414 (1945); Legal Envtl.

Assistance Fund, Inc. v. Bd. of Cnty. CommÓrs of Brevard Cnty. ,

642 So. 2d 1081, 1083 (Fla. 1994); and Pan Am. Airways, Inc. v.

Fla. Pub. Serv. CommÓn , 427 So. 2d 716, 719 Î 20 (Fla. 1984).

21. Notably, this action is not a rule challenge , and the

DepartmentÓs interpretation of its statute as permitting it to

use service of meals in after - school programs , irrespective of

whether such meals are AMP compliant as a distinguishing

criterion in its rules defining after - sc hool programs , are not

at issue here.

22. However , while an agencyÓs reasonable interpretation

of its rules is afforded some deference, a gencies are bound by

the plain and unambiguous language of the rules they adopt and

cannot through interpretation add to or subtract from the rules

they have adopted. See § § 120.52(8) and (16); 120.536; and

§ 120.54 , Fla. Stat. See also McLaughlin v. State , 721 So. 2d

1170 (Fla. 1998) . Moreover, such agency rules must be clear as

to their meaning. As a consequence, th e clear language of the

rules which must be complied with should be construed in favor

of the person from whom compliance is sought . See Elmariah v.

DepÓt of ProfÓl Reg. , 574 So. 2d 164 (Fla. 1st DCA 1990); Taylor

v. DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784 (Fla. 1st DCA

1988). Herein, the language of the r ule does not prohibit

layering of subjects or instructing in more than one subject at

a time . T he DepartmentÓs attempted narrowing of the language of

its rule to so limit its application was not a sim ple or

reasonable interpretation of the rule, but the implementation of

policy not otherwise adopted by the agency. Such unadopted

limitations on the plain language of a rule are unenforceable.

As such , PetitionerÓs method of teaching, tutoring or

instru cting in more than one subject area at a time , or in

taking field trips for academic or instructional purposes is not

prohibited by subsection (2)(c)2 . of the r ule.

23. In this case, Petitioner met the broad definition of a

child care provider since it provided care and supervision of

children on a regular basis supplementary to Ð parental care,

enrichment, and health supervision for the child.Ñ In meeting

this definition, Petitioner must become licensed as a child care

provider unless it meets one of th e exemptions for after school

programs in r ule 65C - 22.008(2)(c).

24. As the person seeking the exemption, Petitioner must

establish by a p reponderance of the evidence that it is entitled

to the exemption. See Fl a. Dep Ó t of Transp . v. J.W.C. Co. , 778

(Fla . 1st DCA 1981).

25. However, the service of the meals by Petitioner

disqualified it from exemption under r ule 65C - 22.008(2)(c)2 .

since service of such meals is prohibited under that s ubsection

of the r ule. Additionally, s ince supervision of the students Ó

entering and leaving the program was provided by Project Esteem,

Petitioner did not meet the requirements of r ule 65C -

22.008(2)(c)3 . for unsupervised programs. Finally, Project

Esteem was not a church - affiliated or sponsored program and did

not meet the exemption for such programs contained in s ection

402. 316 or 402.301(5). Given these facts , the D epartmentÓs

decision to deny Petitioner an exemption from licensure should

be upheld.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions o f

Law , it is RECOMMENDED t hat the Department of Children and

Families enter a final order finding that the decision to deny

the exemption from li cen sure as a child care facility was proper

and dismissing the request for hearing filed in this cause .

DONE A ND ENT ERED this 30th day of October , 2015 , in

Tallahassee, Leon County, Florida.

S

Diane Cleavinger

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 30th day of October , 2015 .

ENDNOTES

1/ The evidence did not demonstrate that Petitioner was a

membership organization affiliated with a national organization

that would be exempt under s ection 402.316.

2 / Notably, many dance or theater schools offer classes in a

variety of dance styles combined with theater training and

students often remain for multiple classes. This multiple of

class offerings is similar to the multiple classes/instruction

provided by Petitioner.

COPIES FURNISHED

Andrew DeGraffenreidt, III, Esquire

Andrew DeGraffenreidt, LLC

319 Clematis Street , Suite 602

West Palm Beach, Florida 33401

(eServed)

Camille Lars o n , Esquire

Northwest Region

Department of Children and Families

2383 Phillips Road, Room 230

Tallahassee, Florida 32308

(eServed)

Stephanie McKoy

The Juvenile Transition Center, Inc.

1901 North Seacrest Boulevard

Boynton Beach, Florida 33435

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department o f Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

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.