15-003737 Daddy&Apos;S Daycare Early Learning Academy, Inc. vs. Department Of Children And Families Status: Closed Recommended Order on Friday, March 25, 2016.

Summary: DCF proved owner of daycare injured child by dragging her across driveway. Facility had multi-year history of licensing violations. Clear & convincing evidence supported denying license renewal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADDY'S DAYCARE EARLY LEARNING

ACADEMY, INC.,

Petitioner,

vs. Case No. 15 - 3737

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDE R

Jo hn D.C. Newton, II, Administrative Law Judge of the

Division of Administrative Hearings (DOAH), c onducted the final

hearing in this matter on November 15, 2015, and January 19,

2016, by video teleconference in Tallahassee and Lakeland,

Florida.

APPEAR ANCES

For Petitioner: Charlann Jackson Sanders, Esquire

Charlann Jackson Sanders, P.A.

Post Office Box 7752

Lakeland, Florida 33807

For Respondent: Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

STATEMENT OF THE ISSUE

May Respondent, Department of Children and Families ( the

Department), deny the applic ation for a renewal license of the

Petitioner, Daddy's Daycare Early Learning Academy, Inc. (Daddy's

Daycare) ?

PRELIMINARY STATEMENT

By letter dated May 1, 2015, the Department issued a Denial

of DaddyÓs Dayc areÓs Application to Operate Licensed Child Care

Facility. DaddyÓs Daycare disputed the facts and requested a

hearing . The Department referred the matter to DOAH. Before

assignment of an Administrative Law Judge, the Department issued

an Amended Denial of Application to Operate Licensed Child Care

Fa cility on June 8, 2015. After two continuances due to

counselÓs scheduling conflict s and the unanticipated

unavailability of a witness, the hearing convened on November 5,

2015. The parties had not filed a pre - hearing stipulation.

DaddyÓs Daycare had no t pre - filed its proposed exhibits. After

repeated failed attempts to transmit the exhibits by facsimile,

the undersigned recessed the hearing providing DaddyÓs Daycare

another opportunity to pre - file proposed exhibits. The hearing

reconvened on January 1 9, 2016.

Daddy Ós DaycareÓs owner, Lonnie Caldwell, testified.

DaddyÓs Dayc are also presented the testimony of Curlena Dukes.

Daddy Dayc areÓs Exhibits 8 and 12 were admitted into evidence.

The Board presented testimony of Cheryl Dishong, Nancy

Ebrahimi, Nikki Marie Ernst, Kenneth Franklin, Kimberly Dawn

Helmick, Kendra Kincade, Demetria Nail, Vicki Richmond, and Ida

Williams. Department Ós Exhibits A through J and L were accepted

into evidence.

The undersigned took official recognition of the

DepartmentÓs Emergency Verified Motion to Modify Custody of

Children into Foster Care dated April 2, 2015, and filed in C ase

No. 53 - 2014 - DP - 000192 - XX (redacted); Order Modifying Custody of

Children, dated April 2, 2015, and filed in Case No. 53 - 2014 - DP -

000192 - XX (reda cted); and Memo of Court Hearing, in Case

N o. 2014DP000192000000, dated April 17, 2015 (redacted).

The parties obtained a t ranscript of the hearing. They

timely filed proposed recommended orders. The proposed

recommended orders have been conside red in t he preparation of

this R ecommen ded O rder.

FINDING S OF FACT

1. DaddyÓs Daycare is a child daycare facility licensed by

the Department. Lonnie Caldwell is the owner, operator , and

director of DaddyÓs Daycare.

2. O n March 25, 2015, D.T., a three - year - ol d child, was a

student at DaddyÓs Daycare, along with two siblings. She and her

siblings were also foster children of Mr. Caldwell and his wife.

3. On March 25, 2015, Mr. Caldwell and his wife were

leaving the facility to take D.T. and other children to lunch.

They were in the driveway of DaddyÓs Daycare. D.T. did not want

to go and threw herself down in a tantrum of resistance.

4. Mr. Caldwell dragged D.T. down the driveway to the car,

spanked her, and forcibly pushed her into the car.

5. Mr. Cal dwellÓs rough treatment of D.T. abraded both her

knees and bruised her legs.

6. Photographs and testimony about direct observations

establish the damage to D.T.Ós knees and legs described in

finding five. D.T. had other injuries. But the nature and caus e

of them w ere not established by persuasive evidence.

7. Hearsay reports from observers lunching acro ss the

street from DaddyÓs Dayc are described the facts found in findings

three and four.

8. Mr. CaldwellÓs statements, consistent and inconsistent,

c orroborate the observersÓ hearsay. In a March 26, 2015,

interview , Mr. Caldwell agreed that he and his wife were leaving

to take children to lunch on March 25, 2015, at about the same

time the observers reported seeing him drag D.T. across the

driveway. He also agreed that D.T. threw herself to the ground.

Mr. Caldwell denied dragging D.T. across the driveway. He did

not mention anyone other than himself, his wife, and the children

being in the driveway. Given the opportunity, Mr. Caldwell did

not offe r an explanation for D.T.Ós injuries, although she spent

the majority of her time with him either as a daycare student or

as his foster child.

9. His testimony at the hearing differed significantly.

Mr. Caldwell was also evasive and made repeated refere nces to

knowing people were watching . This lead s to a conclusion that he

was trying to conceal information. At the hearing, Mr. Caldwell

said that D.T. ran outside to the play area when she learned they

were leaving for lunch. He says his son carried he r to the car.

This is one example of Mr. CaldwellÓs testimony:

I said, come on D. So when I told her that, D.

immediately got off the swing but she dropped on

the -- we have mulch on the field. So she just

dropped to the ground and she was having one of

her tantrums. I have an 11 year old son which

was about to approach her. I said stop, Tim. I

said stop right there. And I told my 15 year old

because I knew that he wasnÓt strong enough and

my back was bothering so I just told my 15 year

old, walk ove r there and pick D. up. I said

because we are very visible. We donÓt kn ow whoÓs

watching the center. And I donÓt want any

misconstrues. So I said, do not pull on her,

pick her up and walk with her. So he did. He

picked her up. I already went outside . You have

to go through a gate. The vehicles are right up

against the gate and on the grass area. Once he

exit the Î the gate with D., sheÓs still wailing

and crying. I said give her to me. So he gave

her to me. And when he gave her to me, she had

m ulch all over her Î her pants and stuff so I had

her face and back and I was just dusting the

mulch off because I didnÓt want her to sit on it

because some of it is pretty prickly. So I made

sure that all the mulch was off of her. And then

I placed her i n her car seat. She was still

wailing because she does not like to be confined.

But when D. sees that she has to get in her car

seat, you donÓt have to get a block away, she

calms down completely. A totally different baby.

SheÓs all calm. I said, see, that wasnÓt bad at

all. Was it?

(Tr. pp.196 - 197)

10. Mr. CaldwellÓs March statements differ significantly

from his testimony at the hearing in January 2016. The

differences are not little Ðpassage of timeÑ sorts of

discrepancies. In March he did not mention his two sons being

present; h e did not claim that D.T. was in the play area; he did

not claim anyone else had touched D.T. Mr. CaldwellÓs claim that

at the time he expressed concern that someone may be watching and

nobody should do anything that w ould be ÐmisconstruedÑ

persuasively indicates that he was trying to defensively adapt

his testimony to fit other evidence.

11. Altogether , the hearsay reports, Mr. CaldwellÓs

testimony, photographs of D.T.Ós knees and legs , and

Mr. CaldwellÓ s conflicting March statements are persuasive,

clear , and convincing evidence that he dragged D.T. across the

driveway, spanked her, and threw her in the car and has been

trying to conceal those facts. These facts also resulted in an

investigation concludin g with a verification of physical abuse of

D.T. by Mr. Caldwell.

12. V isits by Department employees during the course of the

investigation of the March 25 incident revealed several other

licensing violations including: insufficient staff , inadequate

sup ervision , roaches crawling on a table , peeling paint , an

unplugged electrical outlet , hazardous materials (including

cleaning supplies and a k nife) available to the children ,

i mproper assembly of playpens ( makin g them a danger to the

children ), failure to conduct a March fire drill , an improp erly

anchored swing set , bolts protr uding from playground equipment ,

broken equipment , unsecured medication menu not posted , unlabeled

bottles and Ð sippy cups Ñ , incomplete personnel records , and

failure to properly reco rd attendance.

13. The Department also asserted that employees used

physical discipline or the threat of it. The Department did not

prove this by non - hearsay evidence. The evidence is insufficient

to prove the claims. § 120.57(1)(c), Fla. Stat. (2015 ) . 1

14. On July 25, 2014, DaddyÓs Daycare was in violation of

many licensing requirements. Its staffing was insufficient, and

it was not providing the children sufficient supervision.

DaddyÓs Daycare also had not properly recorded childrenÓs

attendance, had not documented level 2 background screening for

some employees, had not documented required staff training, and

had not documented the employment history for some employees. In

addition, on July 25, 2014, DaddyÓs Daycare did not have the

required rec ords of all the childrenÓs immunizations.

15. Other violations on July 25, 2014 , were not properly

sanitizing the diapering surface, rinsing a bottle in the

handwashing sink, failure to properly document a volunteer,

failure to label the childrenÓs bottl es and Ð sippy cups Ñ , feeding

a child using a propped up bottle, and incomplete enrollment

information for some children.

16. On August 26 and 27, 201 4 , Ms. Ebrahimi and Ms. Dukes

inspected DaddyÓs Daycare. On those days DaddyÓs Daycare was

again not in compliance with several licensing requirements.

Mr. Caldwell and two employees had not completed required in -

service training. On the 27 th , two infants did not have proper

supervision. Toxic substances including bleach, cleaning

supplies, and paint wer e available to the children. So were

plastic bags and a knife. The posted emergency contact

information was incomplete. Substitutions to the posted menu

were not posted.

17. On December 29, 2014, Ms. Dishong inspected DaddyÓs

Daycare for the Departme nt. DaddyÓs Daycare was again in

violation of several licensing requirements. The staffing was

insufficient. The kitchen was not securely separated from the

classroom area. The infant room was not properly secured.

Playground equipment was not properl y anchored.

18. On April 21, 201 5 , DaddyÓs Daycare did not have the

lighting required for a daycare facility.

CONCLUSIONS OF LAW

19 . Sections 120.569 and 120.57(1) grant DOAH jurisdiction

over the parties to and the subject matter of this proceedi ng .

20 . The Department seeks to deny DaddyÓs Daycare renewal of

its license for alleged acts of wrongdoing. The Department must

prove its charges by clear and convincing evidence. Coke v.

DepÓt of Child. & Fam. Servs. , 704 So. 2d 726 (Fla. 5th DCA

1998); DepÓ t of Child. & Fam. Servs. v. Mini Miracles ChildrenÓs

World Daycare Ctr . , Case No. 13 - 2798 (Fla. DOAH Feb. 4, 2014;

DCF Feb. 21, 2014).

21. The Department met its burden. It proved Mr. Caldwell

physically injured a child entrusted to his care. It also proved

that DaddyÓs Daycare had a multi - year history of violating

licensing requirements of section 402.305 , Florida Statutes, and

Florida Administrative Code Rule s 65C - 22.002, 65C - 22.003,

65C - 22. 004, 65C - 22.005, and 65C - 22.006.

22. The Department als o argues that because the facility at

the licensed location is not in operation , th is provides a

separate ground for denying renewal. The proposed Denial of

Application to Operate Licensed Child Care Facility did not

assert this claim. Consequently, it m ay not be considered. See ,

Klein v. Dep Ó t of Bus . & Prof Ól Reg . , 625 So. 2d 1237 (Fla. 2 d

DCA 1993) .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Department of Children

and Families, en ter a f inal o rder denying renewal of the daycare

license of Petitioner, DaddyÓs Daycare Early Learning Academy,

Inc.

DONE AND ENTERED this 25th day of March , 2016 , 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 Administrat ive Hearings

this 25th day of March , 2016 .

ENDNOTE

1 / All citations to the Florida Statutes are to the 2015

codification unless otherwise noted.

COPIES FURNISHED:

Charlann Jackson Sanders, Esquire

Charlann Jackson Sanders, P.A.

Post Office Box 7752

L akeland, Florida 33807

(eServed)

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Wine wood 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)

Rebecca Kapusta, General Counsel

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 Or der. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.