15-003827 Department Of Children And Families vs. Kinder Kids Learning Center And Preschool, Ii Status: Closed Recommended Order on Monday, March 28, 2016.

Summary: Department failed to prove by clear and convincing evidence that Respondent left an unscreened individual to supervise children in Respondent's care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner ,

vs. Case No. 15 - 3827

KINDER KIDS LEARNING CENTER AND

PRESCHOOL, II,

Respondent .

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge June C. McKinney of the Division

of Administrative Hearings ( " DOAH " ) heard this case by video

teleconference at locations in Tallahassee and Miami, Florida,

on December 18, 2015.

APPEARANCES

For Petitioner : Javier Alejandro Ley - Soto, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

For Respondent : Lucia C. Pineiro, Esquire

Lucia C. Pineiro and Associates, P.A.

717 Ponce de Leon Boulevard , Suite 309

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE S

Whether the Petitioner correctly cited the Respondent with

a Class I violation when the Respondent left an unscreened

individual to supervise children in the Respondent Ós care , and ,

if so, is the proper penalty an imposition of a $100 .00 fine and

termination of the Respondent Ós Gold Seal designation.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 17, 2015, the

Petitioner , Department of Children and Families ( " Department"),

informed KinderKids Learning Center and Preschool , II

( " KinderKids " ) , of its C lass I violation. The complaint stated

that " during a complaint inspection on 3/12/2015, the child care

facility was cited for a Class I violation of Standard #5,

Supervision Rule, as an unscreened individual, M. Perez was left

alone to supervise children in care. The fine imposed fo r this

Class I violation of 3/12/2015 is $100.00. " The Department also

notified KinderKids that it was terminating its Gold Seal

d esignation.

KinderKids requested a hearing to contest the

Administrative Complaint . On July 1, 2015 , the Department

referred the matter to DOAH to conduct the hearing. The hearing

was set for October 9, 2015. It was rescheduled to December 18,

2015 , upon KinderKids ' agreed - to motion to continue. The

hearing proceeded as rescheduled .

A t the hearing, the Department presented the testimony of

Yessenia Plata, family services counselor supervisor and former

family services counselor. The Petitioner 's Exhibits 1 through

4 were received into evidence. KinderKids presented the

testimony of four witnesses: Fatima Zaldiba, KinderKids ' owner

and d irect or; Elsita Jalil, KinderKids ' pre - kindergarten ( " pre -

K " ) age three teacher ; Ra i my Coipel, KinderKids ' pre - K age four

teacher ; and Tashie de Olma, KinderKids ' pre - K age four teacher .

The proceedings of the hearing were recorded and

transcribed. The one - volume Transcript was filed at DOAH on

January 8, 2016. The parties stipulated to an extension of

their proposed recommended order deadline, which the undersigned

granted. Both parti es fil ed timely proposed recommended o rders.

FINDINGS OF FACT

1. KinderKids is a child care facility licensed by the

Department as License No. C11MD1905 . KinderKids is located at

26049 South Dixie Highway , Naranja, Florida 33032 .

2. Fatima Zaldiba ("Zaldiba") owns and operates

KinderKids . KinderKids has been in operation since January 1,

2011. The Department awarded KinderKids a Gold Seal on July 11,

2012 .

3. KinderKids offers a full readiness program , infant

care , and an aftercare program .

4. On March 12, 2015, Zaldiba informed Raimy Coipel

("Coipel"), the pre - K age four teacher and afternoon director ,

that a volunteer was coming to the school. Zaldiba instructed

Coipel to train and supervise the volunteer with the four - year -

olds for two hours.

5. Zaldiba introduced Coipel to the volunteer, Marilys

Perez ("Perez"). Coipel took her 12 four - year - old children to

the playground area with Perez around four thirty in the

afternoon .

6. Coipel left her 12 four - year - old children with Perez

on the playground to go meet in the KinderKids ' office with

Yessenia Plata ( " Plata " ), the DepartmentÓs then family service

c ounselor . Coipel asked Elsita Jalil ("Jalil"), a background -

screened pre - K teacher , to supervise Perez and her class while

she went to the office. Jali l agreed to watch the volunteer and

CoipelÓs class.

7. Plata was assigned to conduct a complaint inspection at

KinderKids regarding a child who allegedly cut his hand. Plata

arriv ed at the school after four oÓclock in the afternoon . Upon

her arrival, Plata met with Coipel and Zaldiba regarding the

abuse complaint. Plata briefed them about the complaint and

took their statements regard ing the complaint.

8. Afterwards, Plata procee ded to walk the facility

inspecting the center , go ing class - by - class checking the ratios

of children. Plata took the ratios of the classes inside the

building first.

9. That same day Plata also checked the ratios of the

children on the playground and Coipel escorted her around.

Plata met Perez , the volunteer, who was outside on the

playground watching CoipelÓs four - year - old class. Plata

questioned Perez about the abuse complaint.

10. Jalil met Perez for the first time on March 12, 2015,

when Coipel asked Jalil to supervise Perez and her classroom

outside on the playground. Jalil never left Perez or the four -

year - olds alone. Jalil remained on the playground at the same

time with her three - year - old class supervising Perez and the

four - year - old class the whole time Perez was with the children

while Coipel was away . 1 /

11. After checking the ratios, Plata and Coipel returned

to the KinderKids ' office . Plata requested the employee files

for Coipel and Perez, the two new individuals working at

KinderKids who had not been there at the time of the last

inspection , so that she could update their background screening

and training .

12. Zaldiba provided Plata Coipel's file , including the

requested background screening . Zaldiba informed Plata that she

did not have a background screening for Perez because she was on

a trial period. Zaldiba even explained that she was n o t sure if

she was going to keep her. Plata responded by telling Zaldiba

that Perez had to leave the day care facility im mediately

because she did not have a background screening and that Coipel

should take over the care of the four - year - olds. Zaldiba

followed Plata's instructions and had Perez leave immediately .

13. Plata informed Zaldiba th at she was going to give her

a C lass I violation for having an unscreened person left with

the children . Zaldiba explained to Plata that Perez was a

volunteer she was trying out to determine if she was going to

hire her at KinderKids . Zaldiba also tried to provide Plata

with PerezÓs Volunteer Acknowledgement Form , but Plata would not

accept it . 2/ Instead, Plata repeatedly requested a background

screening document for Perez, which Zaldiba did not have for

Perez.

14. Since Plata had Zaldiba send Perez away from the

facility , Plata was unable to verify Perez's position with her

in person . Zaldiba tried to find PerezÓ s information and to

make contact with Perez in front of Plata but was not able to do

so .

15. Plata requested a D epartment specialist in background

screening to run Perez Ós name and three individuals name d

Marilys Perez were found , but none of them looked like the

person she had talked to on the playground earlier.

16. Plata determined that no indicators existed for the

abuse complaint and closed the case.

17. Howe ver, Plata believed that Zaldiba came up with a

story about Perez being a volunteer and that it was never proven

to her , so she cited KinderKids wit h a C lass I violation.

18. Perez was never paid for her volunteer work.

19. On March 17, 2015, t he Department issued KinderKids an

Administrative C omplaint, citing the Respondent with a Class I

violation of Standard #5, Supervision Rule, charging the

facility with having Perez as an unscreened individual, left

alone to supervise children in their care . The Administrative

Complaint also terminated KinderKids Gold Seal designation.

20. KinderKids contested the Administrative Complaint and

requested a hearing.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding pursuant to sections 120.569

and 120.57(1), Florida Statutes (2015) . 3/

22. The Legislature has charged the Department with the

responsibility of licensing child care facilitie s , including the

administration of the Gold Seal Quality designation program.

§ 402.281, Fla. Stat.

23. In a proceeding, such as this one where the Department

seeks to discipline the Respondent Ós license and/or to impose an

administrative fine, the Depar tment has the burden of proving

the allegations charged in the Administrative Complaint by clear

and convincing evidence. Dep't of Banking & Fin., Div. of Sec.

& Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996).

24. The clear and convincing standard of proof has been

described by the Florida Supreme Court, as follows:

Clear and convincing evidence requires that

evidence must be found to be credible; the

facts to which the witnesses testify must be

distinctly remember ed; the testimony 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, without

hesitancy, a s to the truth of the

allegations sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

25. At a minimum, the Department requires all child care

personnel to have a Level 2 background screening. The

Respondent is charged with a Class I violation and is alleged

to have violated the following s ection 402.305(2)(a) , Florida

Statutes , and Florida Administrative Code Rule 65C -

22.006(4)(d)1 .

26. Section 402.305(2)(a) provides in pertinent part :

(2) PERSONNEL. Ï Minimum standards for child

care personnel shall include minimum

requirements as to:

(a) Good moral character based upon

screening. This screening shall be

conducted as provided in chapter 435, using

the level 2 standards for screening set

forth in that chapter.

27 . Rule 65C - 22.006(4)(d)1 . provides in pertinent part :

(d) Initial Screening. Screening

information must be documented on CF - FSP

Form 5131, July 2012, Background Screening

and Personnel File Requirements, which is

incorporated by reference and may be

obtained from the departmentÓs website

www.myflorida.com/childcare or from the

following l ink

http://www.flrules.org/Ga teway/reference.asp

?No=Ref - 0303 0 . Screening includes the

following:

1. Le vel 2 screening as defined in Section

435.04, F.S. For the purpose of issuing a

license, any out - of - state criminal offense,

which if committed in Florida, would

constitute a disqualifying felony offense,

shall be treated as a disqualifying felony

offense for screening purposes under this

rule.

28. Rule 65C - 22.010(1)(d)1 . defines Class 1 violation and

provides in pertinent part:

(d) " Violation " means a finding of

noncompliance by the department or local

licensing authority of a licensing standard.

1. " Class I Violation " is an incident of

noncompliance with a Class I standard as

described on CF - FSP Form 5316, July 2012.

Child Care Facility Standards Classification

Summary, which is incorporated by reference.

A copy of the CF - FSP Form 5316 may be

obtai ned from the departmentÓs website at

www.myflorida.com/childcare or from the

following link

http://www.fl rules.org/Gateway/reference.asp

? No=Ref - 03034 . The effective date of a

termination of a providerÓs Gold Seal

Quality Care designation is the date of the

departmentÓs written notification to the

provider. Class I violations are the most

serious in nature, pose an imminent threat

to a child including ab use or neglect and

which could or does result in death or

serious harm to the health, safety or well -

being of a child.

29. Section 402.281(4)(a) provides grou nds to terminate

the Gold Seal designation for a C lass I violation and states in

pertinent part:

(4) In order to obtain and maintain a

designation as a Gold Seal Quality Care

provider, a child care facility, large

family child care home, or family day care

home must meet the following additional

criteria:

(a) The child care provider must not have

had any class I violations, as defined by

rule, within the 2 years preceding its

application for designation as a Gold Seal

Quality Care provider. Commission of a

class I violation shall be grounds for

termination of the designation as a Gold

Seal Quality Care provider until the

provider has no class I violations for a

period of 2 years.

30. In this case, the Department failed to prove by clear

and convincing evidence that Perez was an unscreened person

supervising children alone . Instead , the record demonstrates

that Perez was a volunteer under constant supervision by either

Coipel o r Jalil, two trained background - screened teachers, while

with the four - year - olds and not left alone. Therefore , the

record lacks any persuasive evidence that any imminent threat

existed for any of the children under volunteer PerezÓs

supervised care . Accordingly, Kin derKids did not commit a

Class I violation , and the record is void of evidence for the

termination of KinderKidsÓ Gold Seal designation.

RECOMMENDED

Based on the forgoing Findings of Fact and Conclusions

of Law, it is R E COMMENDED that the Petitioner , Department

of Children and Families, find KinderKids not guilty of

Violation 1: Class I violation Standard #5 , Supervision

Rule , and dismiss the Administrative Complaint.

DONE AND ENTERED this 28th day of March, 2016, in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Admin istrative 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 28th day of March, 2016.

ENDNOTES

1/ The Petitioner asserts that no other teacher was on the

playground with volunteer Perez. The undersigned rejects such

assertion and finds the combined credible testimony of Elsita

Jalil, Raimy Coipel, and Fatima Zaldiba that Perez was a

volunteer under constant supervision and not alone while with

the four - year - olds on the playground more pers uasive.

2/ The undersigned finds Fatima Zaldiba more credible regarding

the volunteer form.

3/ References to the Florida Statutes are to the 2015 version,

in less otherwise indicated.

COPIES FURNISHED:

Javier Alejandro Ley - Soto, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

(eServed)

Lucia C. Pineiro, Esquire

Lucia C. Pineiro and Associates, P.A.

717 Ponce de Leon Boulevard, Suite 309

Coral Gables, Florida 33134

(eServed)

Paul Sexton, A gency Clerk

Department of Children and Families

Building 2, Room 204

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)

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.