15-006474 Children&Apos;S Academy Preschool Inc., D/B/A Children&Apos;S Academy Preschool I vs. Department Of Children And Families Status: Closed Recommended Order on Tuesday, March 8, 2016.

Summary: For the first Class I health and safety violation and other violations, the Department was obligated under Rule 65C-22 to renew the Petitioner's day care license, but convert it to probationary status and impose monetary fines and other sanctions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHILDREN ' S ACADEMY PRESCHOOL

INC., d/b/a CHILDREN ' S ACADEMY

PRESCHOOL I,

Petitioner,

vs. Case No. 15 - 6474

DEPARTMENT OF CHILDREN AND

FAMILIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case on February 9, 2016 , by

video teleconference, with sites in Tallahassee and Miami ,

Florida , before Robert L. Kilbride, an Administrative Law Judge

( " ALJ " ) of the Division of Administrative Hearings ( " DOAH " ) . The

hearing was held pursuant to sections 120.569 and 120.57(1) ,

Florida Statutes (2015) . 1/

APPEARANCES

For Petitioner: Tanishia Findlay Stokes, Esquire

Law Office of T. Findlay Stokes, P.A.

8362 Pines Boulevard, Suite 270

Pembroke Pines, Florida 33024

Sadiki Mosi Alexander, Esquire

Findlay Stokes, Lynch & Brown, PLLC

8362 Pines Boulevard, Suite 254

Pembroke Pines, Florida 33023

For Respondent: Karen Milia Annunziato, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether sufficient grounds exist to justify denial of

Petitioner ' s license renewal application to operate a child care

facility.

PRELIMINARY STATEMENT

On October 2, 2015 , Respondent, Department of Children and

Families ( " Depa rtment " or " DCF " ) , issued a Denial of Application

for a Child Care Facility License ("Denial of Application ") t o

Petitioner , Children ' s Academy Preschool Inc. , d/b/a Children ' s

Academy Preschool I, denying Petitioner ' s renewal license

application for alleg ed violations of Florida Administrative Code

Rule 65C - 22.00 2 ( 1 ) (a) and ( b ) .

The Denial of Application outlined multiple health ,

sanitation , and safety hazards specifically related to the

physical aspects of the facility , including holes in the ceiling

a nd walls, water damage , and active vermin infestation.

Petitioner disputed the allegations of the Denial of

Application and requested an administrative hearing.

The Department forwarded the request for a hearing to DOAH

on November 17, 2015 . The final hear ing was hel d as scheduled on

February 9, 2016 , by video teleconference .

At hearing, the Department presented the testimony of two

witness es , Ian Fleary and Manuel Falla . The Department ' s

E xhibits numbered 1 through 5 were admitted into evidence.

Petit i on er presented the testimony of Pat rick Adeleke and Daniel

Samaria . Petit i oner ' s Exhibits C1 through C 10 and D1 through D 3

were admitted into evidence .

A t ranscript of the hearing was not ordered. Petitioner and

the Department timely submitted p roposed r ec ommended o rder s ,

which were reviewed and considered in the preparation of this

Recommended Order.

FINDING S OF FACT

The undersigned makes the following findings of material ,

relevant , and probative facts:

1. The Department is the state agency charged with

regulating, licensing , and overseeing the operation of child care

facilities , applying provisions of c h a pter 402 , Florida Statutes,

and chapter 65C - 22 .

2. Petitioner is a child care facility in Miami , Florida ,

regulated and licensed by the Department . It is located at

13801 Memorial Highway , Miami , Florida , 33161. 2/

Stipulated Facts

3 . The Department issued Petitioner child care l icense

number C11MD0670 for the period of October 3, 2014 , through

October 2, 2015 .

4. On August 20, 2015, the Department rec eived a r enewal

application from Petitioner for a c hild c are f acility l icense .

5 . On September 25, 2015, the Department conducted a

renewal inspection of Petitioner ' s child care facility.

September 25, 2015 , R enewal I nspection

6. Th e r enewal inspection o n September 25, 2015 , was

conducted by Gabriele Derice , BA, MSW , a counselor with the

Department . The purpose of the inspection was to check the

physical facility, compliance with recordkeeping requirements and

training . The goal was to e nsure that the h ealth and safety of

the children at the facility w as protected . 3/

7. The owner of the facility, Patrick Ad e leke, was not

present during the inspection on September 25, 2015.

8. After inspecting the entire facility , Derice issue d

a report called an Inspec tion C hecklist ( " Checklist " ) on

September 25, 2015. Dep ' t ' s Ex . 3 . Julianne Politesse, a staff

member of P etitioner, signed the Checklist acknowledging its

receipt on September 25, 2015.

9. The Checklist include d multiple violations which were

discovere d by Derice . The violations were described in the

report , which speaks for itself. However, there were four

significant a reas of noncompliance found at section 14 in the

Checklist specifically related to t he " Facility E nvironment . "

10. Three of the viol ations at section 14 of the Checklist

were C lass III - Technical Support violations , and one violation

was a C lass I. 4/

11. Other areas of noncompliance listed in the Checklist

included a combination of Class II and Class III violations .

The y included outd oor play area, toilets and sink, fire drills

an d emergency preparedness, food preparation area , outdoor

equipment, meals and snacks, cater e d food and food provided by

parents, personnel records , and background screening documents.

12. Of particular note, all classes of violations in the

Checklist , including section 14, were not ated with " D ue D ate

10/09/2015 . "

13. The Department ' s licensing supervisor , Ian Fleary,

testified that the inclusion of a " Due D ate " is in keeping with

standard DCF procedure and gi ve s the license holder " ample time

to comply . " Fu rther, the time provided allows the license holder

time " to make necessary repairs. "

14. There is no dispute that October 9, 2015 , w as to be the

date that the Department ' s inspectors would return to determ ine

if noncompliant items had been corrected.

15. P etitioner was not informed that the Department ' s

inspectors would return before October 9, 2015 , or that another

visit by the Department would occur on October 1, 2015.

16. P etitioner testified that he r elied on the Checklist as

giving him until October 9, 2015 , to make necessary repairs and

bring the facility into compliance .

October 1, 2015 , R eturn and R e - inspection

17. On October 1, 2015 , Fleary made a visit to the facility

with Derice and other state representatives. This visit was

unannounced , and P etitioner was not aware that the Department and

staff w ere returning that day .

18. Fleary decided to make the visit with Derice due to the

serious concerns she reported to him from her first inspection o n

September 25, 2015 .

19. The collecti on of photographs included in the

Department ' s Exhibit 2 and the videotape footage contained in the

Department ' s Exhibit 5 speak for themselves. 5/ The undersigned

finds that the photographs and videotape footage , Res pondent ' s

Exhibits 2 and 5 , respectively , accurately depict the conditions

found by the inspection team on October 1, 2015.

20. Suffice it to say that the inspectors found , and the

undersigned finds, that conditions in the noted areas which

existed on Oct ober 1, 2015 , particularly the kitchen and

bathrooms, were deplorable and shock ing . The conditions of the

noted areas were foul , unsanitary , and expose d the children to

health and safety hazards.

21. Notably, an area identified as the kitchen had

particu lar ly unsanitary conditions. The undersigned finds that

the following general conditions were depicted in the pictures

and videotape from the kitchen area :

a. Live roaches an d active infestation by roaches and other

bugs.

b. Roach droppings (feces) on c ounter tops, storage areas,

cabinets , and floor areas .

c. Extensive w ater damage to the ceiling area and kitchen

cabinets .

d. Food stored in the kitchen area in an unsanitary and

unhealthy manner.

e. Filthy and grimy counters, floors , and cabinets.

Many of the same unsanitary conditions outlined in a. through e.

above existed in bathrooms and storage areas being used by staff

or children .

22. During this visit, Fleary met with Ad e leke, the owner.

Fleary told him that the kitchen area required an " immedi ate "

response and that no food should be prepared, nor should the

kitchen be used in any manner. He also discussed his general

findings and concerns with the owner.

23. Flear y concluded , and the undersigned finds , that the

conditions found in the kitchen area , bathrooms , and storage

depicted in the Department ' s Exhibits 2 and 5 jeopardized the

health and safety of the children and staff , and ex posed the

children and staff to safety and health risks .

24. Testimony from F leary revealed that there had been

previous investigations at the child care facility by the Miami -

Dade County B uilding Department and that citations ( unspecified )

had been issued. Based on his review of other documents, h e

concluded and testified that Miami - Dade County had many of the

sam e interior structural and safety concerns as he and Derice

had .

25. The more persuasive testimony , credited by the

undersigned , indicated that food which was found in the kitchen

area by the inspectors on October 1, 2015, w as stored or kept

there in antic ipation of being served to the pre - school children.

26. The more persuasive testimony, credited by the

undersigned , also indicated that the kitchen identified in the

photographs was in limited u se but that catered food was being

kept, stored , or distribut ed f ro m there. 6/

27 . T he food discovered in the kitchen on October 1, 2015 ,

was brought in by a caterer and was not cooked by P etitioner ' s

staff in the kitchen.

28 . To that same point, the inspectors did not find that

a ny stoves in the kitchen had been r ecently used to cook, n or

were any pots or utensils in use on the stove.

29. Fleary conceded that while he was there , he did not

observe any staff using the kitchen or the kitchen utensils , or

distributing any of the catered food seen in the kitchen.

Lik ewise, he admitted that one toilet in a classroom did not

appear to be in use and was being used for storage.

30. Fleary acknowledged that neither he nor anybody else

from DCF returned after October 1, 2015 , to determine if

compliance had been achieved.

3 1. On redirect, Fleary was ask e d to explain why a " Due

D ate " was included on the Checklist dated September 2 5, 2015.

Despite the fact that all violations in section 1 4 Î 04 of the

Checklist noted a " Due D ate " of October 9 , 2015, he testified

that f or a C la ss I violation , an immediate response is required.

There was no explanation or evidence regarding what " immediate "

meant , or whether or when an immediate response would constitute

compliance.

32. When asked directly why there was no follow - up

inspection after October 1 , 2015 , he indicated that this was due

to the severity of the case an d the internal workload of the

Department . He also testified that there was no follow - up , in

part, because DCF obtained an E mergency Suspension O rder which,

essentially, o bviated the need to re - inspect after October 1 ,

2015. 7/

33. In addition to the Department ' s representatives , a

program specialist with the Florida Department of H ealth , Manuel

Falla , accompanied the DCF staff on October 1, 2015 , for the

inspection visit.

34. Falla testified that the purpose of his participation

was to ensure that a child care food program , administered and

monitored by the Florida Department of Health , was running

appropriately.

35. He testified that he observed many of the same

unsanita ry conditions reported by the DCF staff in the Checklist .

However, h is observations and reporting focused on compliance

with the Florida Department of Health child care food program .

His findings were documented in the Department ' s Exhibit 4 ,

entitled " S ite Review F orm . "

36. Falla described c onditions in the child care kitchen as

" very poor . " He claimed that he " had never seen anything like

this before . " There were active and live in sects crawling about ,

rusty items, holes in the ceiling , and extensive water damage.

The kitchen counter had roach droppings , and there were boxes of

utensils with roach droppings inside.

37. He commented that the condition s in the kitchen were

" very hazardous, and children could get sick . "

38. On cross - examination , he co nceded that he did not

observe any staf f serving food from the kitchen, nor were any

children present in the kitchen . He also said that the stove did

not appear to be in use , but that the refrigerator was in use.

There were food containers inside the kit chen that were being

used.

39. Notably , Falla testified that he was confident that

food /drink items found on October 1, 2015 , in the kitchen

refrig erator were being used because P etitioner had submitted

certain recent reimbursement receipts to his agency for similar

food items. These items included waffles, milk , and juice found

in the kitchen or in the refrigerator on October 1, 2015.

40. He also observed that several catered food items

prepared for service to the children were located in the kitchen

on movable carts .

41. Falla overheard Fleary tell Adeleke during the visit

that the kitchen had to be shut down until it was repaired .

Based on his observations that day , particularly the kitchen ,

Falla testified that " health and safety concerns for the

ch ildren " existed .

42. The review summary contained in Falla ' s Site Review

F orm , the Department ' s Exhibit 4 , was read into evidence and

stated as follows:

A rrived with PS L Romeo to complete complaint

investigation and CCF P review. Review was

completed alo ngside DCF specialists

Ms. Derice & regional DCF supervisor

Mr. Flea ry .

Due to poor conditions of the kitchen and

facility DCF has shut down centers kitchen

until further notice. As per DCF meals

cannot be served on site. As far a s CCF P

meals go cannot serve/claim meals until DCF

completes follow - up process and DCF allows

food operation service.

Sponsor has been placed on ADR for all

7 sites. As per owner Mr. Patrick [ sic ] all

sites self - prepare breakfast and snack.

However, Mips [ sic ] list centers as approved

to be catered for breakfast, lunch & snack.

43. In his r e port, under Physical E nvironment \\ Food and

N utrition , he reported ( by way of his " No " or negative responses )

that :

22. Cleaning supplies are not stored

separately from food.

23. There w as evidence of rodent or insect

infestation .

24. There were potentially hazardous foods

maintained and (if catered), delivered at

im proper temperatures.

25. Prepared food was not stored in clean,

covered containers that are clearly labeled

and mark ed w ith date of preparation.

26. Proper procedures were not being

followed for washing, rinsing, sanitizing

utensils, food preparation equipment, and

food contact surfaces.

Adeleke signed Falla ' s Site Review Form as a representative of

P etitioner on October 1, 2015.

44. Daniel Samaria testified that o n October 3, 2015 , his

licensed pest control c o mpany , Creepy Critters , inspected

Petitioner ' s facility and provided pest control services. This

involved a two - step process. The first visit on October 3

involv ed spraying all areas to " flush out " the insects and

roaches. The company came back approximately a week later and

provided another pest control treatment involving a bait

treatment. 8/

45. Samaria testified that since the inspections in

September and Oct ober 2015 , he has been providing ongoing and

monthly pest control treatment s and plan ned to provide another

treatment in February 2016.

46. He found roach droppings , and some roaches were dead.

He acknowledged that as a result of his inspection and treat ment ,

P etitioner ' s " bug problem " has not been eliminated , but it is

" under control for now . "

47. On cross - examination, he ident ified the roach problem

as involving German roaches , whose presence is generally due to

" food, uncleanliness or boxes . " In part icular, he testified that

German roaches thrive in environments where kitchen grease is not

cleaned up properly or the area is not degreased properly. The

German roaches collect around and feed off the grease.

Testimony of Patrick Adeleke

48. The owner o f Petitioner , Adeleke, testified that he had

previously used another pest control company wh ich provided

services on weekends , but they were terminated after the

October 1 , 2015 , inspection by the Department . 9/

49. Adeleke had operated the day care facili ty for

23 years. He testified that he had a bachelor ' s degree from

Northeastern University , and an MBA in public administration. He

also testified that he worked for HRS (economic division) for

several years.

50. He testified that renovations were start ed just before

the inspec tion on September 25, 2015. F urther, that the areas

under renovation (unspecified by him) and two classrooms were

closed off and used for storage only. 10/

51. P etitioner had a catering contract with G reater of

Miami (sp?) . That organization delivered hot meals in Styrofoam

boxes each day together with plates, utensils , and cups. They

were all disposable items. 11/

52. Adeleke was not present when the inspection occurred on

September 25, 2015. However, he reviewed the Checklist and

testified that he relied on the October 9, 2015 , due date to make

repairs. He felt that the two weeks would give him adequate time

to bring all areas of noncompliance into compliance, including

the kitchen.

53. Adeleke was present during the October 1, 2015 ,

inspection . H e escorted the DCF staff around. On October 1 ,

2015 , he told Fleary that the " only area left to be done " was the

kitchen. 12/

54. Adeleke testified that the areas depicted in the video

( Department ' s Exhibit 5) were areas of the faci lity that were

either not in use, being renovated , or used for storage. He

further claimed that the refrigerator in the video was not being

used. 13/

55. P etitioner ' s defense relied, in part, on a collection

of pictures that Adeleke testified he took on O ctober 3, 2015

( see P etitioner ' s E xhibit C 1 through C 10) . From what can be

observed in th ese photos, i tems depicted in Petitioner ' s

E xhibit s C5, C6 , and C8 show a kitchen area that appears to be

relatively clean and sanitary.

56. The owner testified that Petitioner ' s E xhibit C5

depicted the kitchen in question and that when the picture was

taken , new cabinets had been installed, the kitchen had been

painted , and new ceiling tiles were installed.

57. The owne r testified that Petitioner ' s E xhibit C6

depict ed a food warmer in the kitchen in question.

58. Finally, the owner testified that Petitioner ' s

E xhibit C8 showed a new kitchen counter surface that was

replaced. Petitioner ' s Exhibit C8 also shows a refrigerator

which had been defrosted, cleaned out , an d old food items

discarded. 14/

59 . F rom what can be seen , t he undersigned finds that the

areas of the facility depicted in Petitioner ' s E xhibits C1

through C10 appear to be clean . 15/

60. O ther than the owner ' s testimony that these pictures

were taken on October 3, 2015 , there were no witnesses or staff

members called to verify or support his testimony concerning th e

date the pictures were taken . The pictures themselves contain no

calendar date or time printed on them. A s a result, the

undersigned consid ers these pictures unpersuasive insofar as the

October 3, 2015 , date is concerned. 16/

61. The owner testified that during the October 1, 2015 ,

inspection visit , he told Fleary that the only item which

remained to be repaired or cl eaned was the kitchen. 17/

62. It was undisputed, and the owner testified, that DCF

never returned after October 1, 2015 , to re - inspect. Adeleke

testified that in his experience , DCF typ ically gives facilities

repair deadlines to bring violations in to compliance. Further,

he rel ied on the October 9 , 2015 , deadline to complete the repair

work .

63. On cross - examination , the owner testified that he is

familiar with the rules and regulations governing child care

facilities. He testified that he never saw any roaches prior to

Octobe r 1, 2015. 18/

CONCLUSIONS OF LAW

64. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1).

65. The laws, standards , and r ules regulating child care

facilities can generally be found in c hapter 402 and chapter 65C -

22.

Applicable Case Law

66 . This case began when the Department issued a letter

informing Petitioner that it s license to operate a child care

facility would not be renewed , as the consequence for several

violations found during the renewal inspection. This constituted

d isciplinary or penal action against Petitioner ' s child care

facility license, pursuant to c hapter 402 . As such, the

Department bears the burden, by clear and convincing evidence, to

establish the grounds for disc ipline and penal sanctions against

Petitioner ' s license. Coke v. Dep ' t of Child. & Fam. Servs. , 704

So. 2d 726 (Fla. 5th DCA 1998). See also Dep ' t of Banking & Fin.

v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987 ) .

67. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989), the Court

defined clear and convincing evidence as follows:

Clear and convincing evidence requires that

the evidence must be foun d to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the evidence 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 produc es in the mind of the

trier of fact the firm belief of conviction,

without hesitancy, as to the truth of the

allegations sought to be established. Id. at

116 n.5, citing Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

68 . Whether Petit i one r committed the charged violations is

a q uestion of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. See Mc Kinney v.

Castor , 667 So. 2d 387, 3 89 (Fla. 1st DCA 1995); Goin v . Comm ' n

on Ethics , 658 So. 2d 1131, 1 138 (Fla. 1st DCA 1995) ; Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

69. A new evidentiary record, based upon the historical and

objective facts, is developed during a de novo hearing conducted

under section 120.57(1) and is intended to formulate final agency

action . Haines v. Dep't of Child. & Fams. , 983 So. 2d 602 (Fla.

5th DCA 2008) . If the purpose of a chapter 120 administrative

hearing is to ferret out all the relevant facts and allow the

"affected parties an opportunity to change the agency's mind,"

then, logically, it must be the facts and observations adduced at

the final hearing that carry the day, and upon which any final

action by the agency is measured. See generally J.D. v. Fla.

Dep't of Child. & Fams. , 114 So. 3d 1127 (Fl a. 1st DCA 2013),

citing with approval Couch Const. Co. v. Dep't of Transp. , 361

So. 2d 172 (Fla. 1st DCA 1978). See also Caber Systems, Inc. v.

Dep't of Gen. Servs. , 530 So. 2d 325, 334 n.5 (Fla. 1st DCA

1988) .

70. The factual findings made herein were developed

appl ying the standards and discretion afforded to independent

hearing officers in chapter 120 proceeding s . Goin v. Comm ' n on

Ethics , supra ( " Florida ' s Administrative Procedures Act relies

upon a hearing officer to consider all the evidence prese nted,

resolve conflicts, judge credibility of witnesses, draw

permissible inferences from the evidence, and reach ultimate

findings of fact based on competent, substantial evidence. " ).

71. Petitioner has asserted, in part , that the Department

is estopped to find violations because Petitioner had until

October 9, 2015 , to comply and correct the violations . Aside

from the fact that the undersigned finds that it was not shown

that the conditions were improved in a timely manner, this

argument is still unavai ling because the evidence does not

support several elements necessary to successfully utilize the

doctrine of equitable estoppel against a governmental agency.

Council Bros. v. City of Tallahassee , 634 So. 2d 265 (Fla. 1st

DCA 1994) .

72. For instance, it has not been demonstrated that the

affirmative action of the Department listing a due date of

October 9, 2015, went beyond mere negligence. Nor has it been

shown that failing to apply the doctrine will cause a serious

injustice to Petitioner. In fact, j ust the opposite might occur

if the doctrine were applied resulting in extended exposure of

children and staff to unsanitary conditi ons . Council Bros. ,

supra .

73. Finally, the undersigned concludes that applying the

doctrine in this situation would undul y harm the public by

allowing a publicly un health y and unsanitary condition to

continue to exist . See also Assoc iated Indus. Inc. Co. v. D ep ' t

of Labor & Em p. Sec. , 923 So. 2d 1252 (Fla. 1 st DCA

2006) ( " Equitable estoppel will apply against a governmental

entity only in rare instances and under exceptional

circumstances. " ) . Those rare instances or exceptional

circumstances do not exist in this case.

Applicable Statutes

74. Several statutes and rules are implicated by the facts

of this case and must be con sidered . The applicable statutes ,

followed by the rules , are outlined below.

Legislative Intent

75. In this case, and under the circumstances presented

herein, it useful to briefly survey limited excerpts of the

Legislative Intent, outlined in section 40 2.26. These

legislative goals will assist the parties, and the undersigned,

in arriving at the correct recommendation to address the

violations discovered at Petitioner ' s facility .

76. A good starting point is to determine what underlying

goals the Legis lature has sought to achieve in Florida ' s child

care industry and how enforcement mechanisms available to the

Department should be utilized to further those goals.

77. Section 402.26 , entitled " Child care; legislative

intent ," provides , in condensed form , as follows :

(1) The Legislature recognizes the critical

importance to the citizens of the state of

both sa fety and quality in child care. . . .

For many families, child care is an

indispensable part of the effort to meet

basic economic obligations or to make

economic gains. . . . In addition, the

Legislature recognizes the abilities of

public and private employers to assist the

family ' s efforts to balance family care needs

with employment opportunities.

(2) The Legislature also recognizes the

effects of both safety and quality in child

care in reducing the need for special

education, public assistance, and dependency

programs and in reducing the incidence of

delin quency and educational failure. . . .

(3) To protect the health and welfare of

children, it is the intent of the Legislature

to develop a regulatory framework that

promotes the growth and stability of the

child care industry and facilitates the safe

physical, intellectual, motor, and social

development of the child.

(4) It is also the inten t of the Legislature

to promote the development of child care

options in the private sector and disseminate

information that will assist the public in

determining appropriate child care options.

(5) It is the further intent of the

Legislature to provide and make accessible

child care opportunities for children at

risk, economically disadvantaged children,

and other children traditionally

disenfranchised from society.

78 . Section 402.305 , entitled " Licensing standards; child

care facilities , " provides , i n relevant part:

(1) LICENSING STANDARDS. -- The department

shall establish licensing 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 th e facility.

(a) The standards shall be designed to

address the following areas:

1. The health, sanitation, safety, and

adequate physical surroundings for all

children in child care.

* * *

(5) PHYSICAL FACILITIES. -- Minimum standards

shall inc lude requirements for building

conditions, indoor play space, outdoor play

space, napping space, bathroom facilities,

food preparation facilities, outdoor

equipment, and indoor equipment.

79. Pertinent provis i ons of section 402.308, entitled

" Issuance of L icense , " provide as foll ows :

(1) ANNUAL LICENSING. -- Every child care

facility in the state shall have a license

which shall be renewed annually .

* * *

(3) STATE ADMINISTRATION OF LICENSING. -- In

any county in which the department has the

autho rity to issue licenses, the following

procedures shall be applied:

* * *

(b) Prior to the renewal of a license, the

department shall reexamine the child care

facility, including in that process the

examination of the premises and those records

o f the facility as required under s. 402.305,

to determine that minimum standards for

licensing continue to be met.

* * *

(d) The department shall issue or renew a

license upon receipt of the license fee and

upon being satisfied that all standard s

required by ss. 402.301 - 402.319 have been

met.

80. Section 402.310 authorizes the Department to take

disciplinary action and impose other penalties against child care

facility licenses for violation of applicable statutes and rules.

The statute states in pertinent part:

(1)(a) The department or local licensing

agency may administer any of the following

disciplinary sanctions for a violation of any

provision of ss. 402.301 - 402.319, or the

rules adopted thereunder:

1. Impose an administrative fine not to

exceed $100 per violation, per day. However,

if the violation could or does cause death or

serious harm, the department or local

licensing agency may impose an administrative

fine, not to exceed $500 per violation per

day in addition to or in lieu of any other

disciplinary action imposed under this

section.

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the terms of

probation. A probation - status license or

registration may not be issued for a period

that exceeds 6 months and the probation

status license or registration may not be

renewed. . . .

3. Deny, suspend, or revoke a license or

registration.

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

following factors shall be considered:

1. The severity of the violation, including

the probability that death or serious harm to

the health or safety of any person will

result or has resulted, the severity of the

actual or potential harm, and the extent to

which the provisions of ss. 402.301 - 402.319

have been violated.

2. Actions taken by the licensee or

registrant to correct the violation or to

remedy complaints.

3. Any previous violations of the licensee

or registrant.

(c) The department shall adopt rules to:

1. Establish the grounds under which the

department may deny, suspend, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301 - 402.319.

2. Estab lish a uniform system of procedures

to impose disciplinary sanctions for

violations of ss. 402.301 - 402.319. The

uniform system of procedures must provide for

the consistent application of disciplinary

actions across districts and a progressively

increasin g level of penalties from pre -

disciplinary actions, such as efforts to

assist licensees or registrants to correct

the statutory or regulatory violations, and

to severe disciplinary sanctions for actions

that jeopardize the health and safety of

children, su ch as for the deliberate misuse

of medications. . . .

(d) The disciplinary sanctions set forth in

this section apply to licensed child care

facilities, licensed large family child care

homes, and licensed or registered family day

care homes.

(2) When t he department has reasonable cause

to believe that grounds exist for the denial,

suspension, or revocation of a license or

registration; the conversion of a license or

registration to probation status; or the

imposition of an administrative fine, it

shall determine the matter in accordance with

procedures prescribed in chapter 120 .

Applicable Rules

81. S everal provisions of the F lorida Administrative Code

are also applicable, particularly when enforcement of the child

care licensing laws is implicated . I n particular, r ule 65C -

22.002 , entitled " Physical Environment , " state s , in relevant

part :

65C - 22.002 Physical Environment.

(1) General Requirements.

(a) All child care facilities must be clean,

in good repair, free from health and safety

hazar ds and f rom vermin infestation.

82. Likewise , other e nforcement rules exist. In

particular, r ul e 65C - 22.010 , entitled " Enforcement , " provides , in

applicable part :

65C - 22.010 Enforcement.

(1) Definitions.

* * *

(b) " Probation " is a licensing status

indicating the license is in jeopardy of

being revoked or not renewed due to

violations of licensing standards. Probation

may require the licensee to comply with

specific conditions intended to ensure that

the licensee comes into and maintains

compliance with licensing standards.

Examples of such conditions are: a deadline

to remedy an existing violation, a specified

period during which compliance with licensing

standards must be strictly maintained; and

specified conditions under which the facility

mus t operate during the probationary period.

(c) " Standards " are requirements for the

operation of a licensed facility provided in

statute or in rule.

(d) " Violation " means a finding of

noncompliance by the department or local

licensing authority of a lic ensing standard.

1. Class I violations are the most serious

in nature, pose an imminent threat to a child

including abuse or neglect and which could or

does result in death or serious harm to the

health, safety or well - being of a child.

* * *

( 2) Disciplinary Sanctions.

(a) Enforcement of disciplinary sanctions

shall be applied progressively for each

standard violation. In addition, providers

will be offered technical assistance in

conjunction with any disciplinary sanction.

The department shall take into consideration

the actions taken by the facility to correct

the violation when determining the

appropriate disciplinary sanction.

* * *

(e) Disciplinary sanctions for licensing

violations that occur within a two year

period shall be pro gressively enforced as

follows:

1. Class I Violations.

a. For the first and second violation of a

Class I standard, the department shall , upon

applying the factors in Section 402.310(1),

F.S., issue an administrative complaint

imposing a fine not less than $100 nor more

than $500 per day for each violation, and may

impose other disciplinary sanctions in

addition to the fine. ( E mphasis added).

b. For the third and subsequent violation of

a Class I standard, the department shall

issue an administ rative complaint to suspend,

deny or revoke the license . The department,

upon applying the factors in Section

402.310(1), F.S., may also levy a fine not

less than $100 nor more than $500 per day for

each violation in addition to any other

disciplinary san ction.

ULTIMATE FINDING S OF FACT AND CONCLUSION S

83. Based on the persuasive and credible evidence

presented, the undersigned concludes that :

84. T he Department proved that the violations outlined in

the Septem ber 25, 2015 , " Checklist " ( Department ' s Exh ibit 3)

existed on September 25, 2015.

85. Further, that on October 1, 2015 , it was clear under

section 402.308 that all standards required by sections 402.301

through 402.319 and chapter 65C - 22 ha d not been met.

86. Petitioner had not correct ed any of t he Checklist

violations as of October 1, 2015 , and several material

violations, which justify disciplinary action , existed and were

still not corre cted by October 9, 2015 .

87. Based on the credible and persuasive evidence, the

undersigned finds that the C lass I violation under section 14 - 04

of the " Checklist " was not brought into compliance by October 9,

2015.

88. Nonetheless , t he undersigned is constrained by the

explicit and clear provisions of r ule 65C - 22 .010 , which set s

for th a mandatory progressive d isciplinary scheme that the

Department was obligated to follow .

89. This r ule was created by and must be r ead in pari

materia with the enabling statute , section 402.310(1)(c) , which

provides :

The department shall adopt rules to :

1. Establish the grounds under which the

department may deny , suspend, or revoke a

license or registration or place a licensee

or registrant on probation status for

violations of ss. 402.301 - 402.319. ( E mphasis

added ) .

90. The r ule adopted to implement this provision , 65C - 22 ,

e xpressly provides that a license may only be revoked or denied

for a Class I violation for the third or fourth violation in a

two - year period. 19/

91. Since t his was the first Class I violation for

Petitioner in a two - year period , the mandatory progressive

d isciplin ary s anctions of r ule 65C - 22.010 (2) (e)1 . a. appl ied and

had to be followed . T he Department was entitled to impose a fine

of not less than $100 , nor more than $500 per day , for each

violation and had the discretion to i mpose other disciplinary

san ctions in addition to the fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, the undersigned is constrained by the progressive

disciplinary standards mandated by rule 65C - 22.010(2)(e)1 . a . to

recommend the following:

1. Ch ildren ' s A cademy Preschool I nc ., d/b/a C hildren ' s

A cademy P reschool I , be issued its renewal license converted to

probation status as permitted by section 402.310(1)(a)2. See

Dep't of Child. & Fams. v . Davis Fam. Day Care , Case No. 11 - 0916

(Fla. DOAH Oct. 25, 2011; Fla. DCF Feb. 8, 2012). As condition s

of the probation status , unannounced periodic inspections by the

Department should be made , requiring strict compliance with

licensing standards . Furthermore, as a condition of probation ,

a dequate monthly pest control and cleaning services must be

provided to the extent reasonably necessary to control the

problem and eliminate the exposure of children and staff to

health or safety concerns .

2. Conversion to p robation status should be imposed for a

minimum of six (6) months f rom the date of the Department ' s f inal

o rder.

3. Children ' s Academy Preschool I nc ., d/b/a Children ' s

Academy Preschool I, should be assessed a daily administrative

fine of $10 0 f or the period from September 25 through October 9,

2015 , f or a total amount of $1,400, to be paid as a condition of

probation with in 60 days.

In closing, t his recommendation comports with the

progressive discipline required by r ule 65C - 22 .010 . It also

strikes the best balance of respecting the legislative intent to

provide child care services to the economically disadvantaged ,

while at the same time protecting the safety and welfare of the

children using a child care facility which had been used by the

local community for over 15 years .

DONE AND ENTERED this 8th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

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 8th day of March , 2016 .

ENDNOTE S

1/ References to Florida Statutes are to the 2015 version, unless

otherwise indicated.

2/ From the collection of photos reviewed by the undersigned and

other evidence presented, it was evident that this facility

serves a large population of "children at risk, economically

disadvantaged children, and other children traditionally

disenfranchised from society." See § 402.26, Fla . Stat .

3/ T here was no evidence to show or suggest that this renewal

inspection was "unannounced."

4/ It is the Class I violation that forms the crux of the

enforcement action and dispute in this case.

5/ There is n o compelling need to describe in this Recommended

Order the details of the pictures and videotape clips, since the

conditions at the facility are well documented and portrayed.

6/ In fact, during Fleary ' s interview of Adeleke on October 1,

2015, Adeleke informed Fleary that the food kept or stored in the

kitchen was served, or wo uld be served, to the children.

7/ The Department did not offer this order into evidence, and

scant details were provided . However, the issuance of this order

was not disputed.

8/ The service on October 3, 2015, cost $30.00. The extent

and usefulness of pest control services, at that price, is

questionable for a facility as large and overrun by pests, as it

was. The undersigned also notes that there was no evidence

solicited from Samaria, as an independent witness, to support or

help explain the pictures offered into evidence by Petitioner

regarding the renovations which purportedly were finished and

existed on October 3, 2015 ( t he same day Samaria was present) .

See Pet ' r ' s Exs. C1 - C10.

9/ Based on the photographs and videotape taken on October 1,

2015, which were carefully reviewed by the undersigned, Adeleke ' s

testimony regarding these pest control services, or at least, any

consistent or adequate pest control services pr ior to October 1,

2015, is rejected as not being credible. This finding is

reached, in part, in light of the widespread and active vermin

infestation and deplorable bug condition that existed on

October 1, 2015. Notably, there were no other witnesses, st aff

members, or business records offered to confirm any prior pest

control service or cleaning service. The appalling condition of

the facility belied any claim that regular or adequate pest

control or cleaning services had previously been provided.

10/ Conspicuously, and again, there were no witnesses, staff

members, or documents offered to confirm any (1) prior or ongoing

renovation work, (2) cost of materials, or (3) other evidence to

support his testimony. As a result, the undersigned does not

credi t his testimony on this subject.

11/ The undersigned concludes that all food used or consumed on

the premises was catered in, and the kitchen was not being used

for cooking. Nonetheless, the undersigned finds that the kitchen

was used for food storage a nd that the refrigerator in one of the

classrooms was actively in use. (For instance, the videotape of

that classroom showed several dead roaches in the bottom of the

refrigerator where juices, cups, and bottles were stored.)

12/ To the extent this clai m suggests that other photographed

areas, besides the kitchen, were clean and sanitary on October 1,

2015, it is rejected as specious and contrary to other credible

evidence. For instance, his testimony is seriously undermined by

the pictures and video ta pes themselves which show that many

other areas of the facility, besides the kitchen, were still

filthy and unsanitary on October 1, 2015. This included several

bathrooms, classrooms , and storage areas.

13/ These claims are contradicted, in part, by the video clip of

the refrigerator which was in a room where children were located

and had several drink items inside and dead roaches in the

bottom.

14/ Again, significantly, no other witnesses, staff members,

receipts, or business records were offered to verify or support

any of the activity date(s) or renovation work in the kitchen,

making the date(s) of completion uncertain and unclear to the

undersigned.

1 5 / But the undersigned hastens to note that these pictures do

not cover all of the suspect areas and pictures offered into

evidence by the Department. Further, they do not prove

compliance with all the violations noted in the September 25,

2015, Checklist ( Department ' s Exhibit 3 ) . Also, the date they

were actually taken is a matter of serious debate .

16/ An additional concern is that Petitioner ' s Ex hibits C1

through C10 were not provided to the Department ' s counsel in a

timely fashion , violating the undersigned ' s Order of Pre - h earing

Instructions dated December 3, 2015. These pictures only

surface d, apparently, shortly before the hearing on February 9,

2016. Further, the undersigned notes that "Petitioner ' s Exhibit

List , " on page 3 o f the Joint Pre - h earing Stipulation , dated

February 1, 2016 , inexplicably does not include Petitioner ' s

Exhibit C as being an exhibit that existed on the date the

s tipulation was filed. Finally, conspicuously absent in both the

Joint Pre - h earing Stipulation and Petitioner ' s Petition in

Opposition to the Denial of Application for Child Care License

and Request for Forma l Administrative Hearing , dated November 6,

2015, is any reference, assertion , or mention of Petitioner ' s

alleged compliance and renovations being completed on October 3,

2015 (as allegedly depicted in Petitioner ' s Exhibit C1 through

C10). All of this lea ds the undersigned to the conclusion that

little weight should be given to Petitioner ' s photographs ,

Exhibits C1 through C10 , concerning the date they were allegedly

taken. ( See generally Fla. R. Civ . P. 1.380(b)(2) and the

Author ' s Comments and cases con struing subdivision (b)(2) of the

r ule). Furthermore, as previously noted, there were filthy and

bug - infested areas of the facility other than the areas shown in

E xhibits C1 through C10. The undersigned concludes that even if

the date of Petitioner ' s pic tures is credited, which it is not,

other unhealthy or unsafe areas of the facility were not cleaned

or repaired before the due date October 9, 2015.

17/ Again, the undersigned finds this statement to be

unpersuasive and contrary to what the videos and p ictures showed.

The video and pictures showed other areas, besides the kitchen,

that were still filthy and unsanitary on October 1, 2015. He

promised Fleary that they would not use or allow cooking in the

kitchen. He testified that Fleary would not list en to him.

18/ The undersigned rejects this testimony as incredible,

particularly in light of the pictures and videos taken on

October 1, 2015. The bug infestation problem was widespread,

open, and obvious.

19/ In the absence of any specific law or ru le to the contrary,

this conclusion is not changed merely because Petitioner was up

for renewal of its license. The undersigned has not been

provided any statute or rule from the parties suggesting that a

renewal applicant is held to a different standard than an active

licens ee. If this case had been presented a s a violation

reported by the public with disciplinary enforcement imposed , the

path and options would have been even more clear. Regardless,

a renewal scenario does not dictate a different outcom e. For

renewal of a license, the condition of the premises is still

judged against the same standards as it would be had a violation

been anonymously reported or discovered. ( See generally

§ 402.308(3)(b) and (d), Fla. Stat.). The parties have not cite d

any statute or rule to the contrary.

COPIES FURNISHED:

Paul Sexton, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Tanishia Findlay Stokes, Esquire

Law Office o f T. Findlay Stokes, P.A.

8362 Pines Boulevard, Suite 270

Pembroke Pines, Florida 33024

(eServed)

Karen Milia Annunziato, Esquire

Department of Children and Families

401 Northwest 2nd Avenue, Suite N - 1014

Miami, Florida 33128

(eServed)

Sadiki Mosi Ale xander, Esquire

Findlay Stokes, Lynch & Brown, PLLC

8362 Pines Boulevard, Suite 254

Pembroke Pines, Florida 33023

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Fl orida 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 wr itten 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.