16-006249 Department Of Children And Families vs. The Early Years Child Development Center Status: Closed Recommended Order on Thursday, March 30, 2017.

Summary: The Department failed to prove, by clear and convincing evidence, that Respondent violated Florida Statutes and rules; administrative fine is not warranted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 16 - 6249

THE EARLY YEARS CHILD

DEVELOPMENT CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

T he final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016) , 1/ on January 31, 2017, by

video teleconferen ce sites in Tallahassee and Lakeland, Florida.

APPEARANCES

For Petitioner: Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

For Respon dent: Gregg S. Kamp, Esquire

Gregg S. Kamp, P.A.

Post Office Box 6235

Lakeland, Florida 33807

STATEMENT OF THE ISSUE

The issue in this matter is whether the Department of

Children and Families should i m pose an administrative fine on

Respondent.

PRELIMINARY STATEMENT

On June 23, 2016, Petitioner, Department of Children and

Families (the ÐDepartmentÑ), issued an Administrative Complaint

notifying Respondent, The Early Years Child Development Center

(ÐResp ondentÑ), that the Department intended to impose on it an

administrative fine in the amount of $250. The Department seeks

to sanction Respondent for violating child care licensing

standards found in section 402.301 - 402.319 , Florida Statu t es , and

Florida A dministrative Code Chapter 65C - 22.

Respondent timely requested an administrative hearing

challenging the DepartmentÓs action. On October 26, 2016, the

Department referred the matter to the Division of Administrative

Hearings (ÐDOAHÑ) and requested assignm ent to an Administrative

Law Judge (ÐALJÑ) to conduct a chapter 120 evidentiary hearing.

The final hearing was held on January 31, 2017. The

Department presented the testimony of A.O. (a minor child), Shana

Nicholes, and Brandy Queen. Department Exhibits 1 through 3 were

admitted into evidence. Respondent presented the testimony of

Antuan Bunkley, Joseph Jackson, Sr., and Elizabeth Jackson.

Respondent Exhibits 1 and 2 were admitted into evidence. 2/

A one - volume Transcript of the final hearing was filed with

DOAH on March 1, 2017. At the close of the hearing, the parties

were advised of a ten - day timeframe following receipt of the

hearing transcript at DOAH to file post - hearing submittals. Both

parties filed Proposed Recommended Orders which were duly

c onsidered in preparing this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating licensed or registered child care facilities in

Florida.

2. Respondent is licensed to operate a child care f acility

in Lakeland, Florida.

3. The Department seeks to sanction Respondent based on an

incident that occurred on November 2, 2015. The DepartmentÓs

Administrative Complaint specifically alleges that:

The facility driver, Antuan Bunkley was

looking at his phone while trans porting

children in the facilityÓs vehicle. Two

witnesses observed Antuan Bunkley texting

and/or scrolling while driving. . . . The

witnesses observed a phone in AntuanÓs hands

and him looking down several times while

driving with children in the van. S everal

children on the van told the Department that

Antuan text [sic] while he drives, plays

games on his phone, and receives calls while

driving.

The Department asserts that Mr. Bunkley must Ðbe able to respond

to the needs of the childrenÑ and Ðbe alert and avoid any and all

distractions in order to effect ively respond to those needs.Ñ

4. The Department categorized RespondentÓs ( i.e. ,

Mr. BunkleyÓs) actions as a Class I violation of a child care

licensing standard. The Department desires to fine Respo ndent in

the amount of $250 because Mr. BunkleyÓs Ðinadequate supervision

posed an imminent threat to the child, or could or did result in

death or serious harm to the health, sa fety or well - being of a

child.Ñ

5. The Department issued the Administrative C omplaint

following a complaint received from Shana Nicholes, who had

observed Mr. Bun kley driving RespondentÓs van.

6. At the final hearing, Ms. Nicholes testified that on

November 2, 2015, at approximately 3:30 p.m., she was driving her

sports utility ve hicle on Highway 98 North in Lakeland. Her

brother was riding with her in the passenger seat. As she drove,

her brother called her attention to RespondentÓs van which was

driving in front of them. He commented that the van was full of

children who were not wearing seat belts. As her vehicle drew

closer to the van, Ms. Nicholes observed that not only were the

children not wearing seat belts, but she believed that she saw

the driver (Mr. Bunkley) looking down at h is cell phone while

driving.

7. Ms. Nicho les explained that Highway 98 North has four

lanes through Lakeland. Over a stretch of about three to four

miles, Ms. Nicholes drove in the left side lane roughly parallel

to Mr. Bunkley. Ms. Nicholes testified that during that drive,

she saw Mr. Bunkley holding a phone. She further stated that he

looked down at the phone in his lap several times as he drove.

Ms. Nicholes guessed that Mr. Bunkley lowered his eyes for

approximately 10 to 20 seconds each time he glanced down. She

stressed that Ðhe wasnÓt paying attention to the road.Ñ

Ms. Nicholes expressed that the two veh icles drove as fast as

45 mph.

8. Ms. Nicholes was quite alarmed by Mr. BunkleyÓs actions.

As she drove next to him, she took several photographs of him with

her cell phone. Copie s of Ms. NicholesÓ photographs were

introduced at the final hearing. The photographs show

Mr. Bunkley looking down as he is sitting in the driverÓs seat.

However, neither Mr. BunkleyÓs right hand nor a cell phone are

visible in the pictures. (Responden t disputes that the van was

moving at the time Ms . Nicholes took the pictures.)

9. Ms. Nicholes was shocked by the incident. She was

worried for the safety of the children in the van. She commented

that if her child were riding in the van, and the drive r was

distracted like Mr. Bunk ley was, she would be furious.

10. Later that day, Ms. Nicholes posted her photographs of

Mr. Bunkley driving RespondentÓs van on her Facebook page. She

added the caption, ÐWell, this is safe, weÓre doing about 45 down

98 an d this guy is texting with a van full of children. Not

cool, dude.Ñ

11. The next morning, Ms. Nicholes was still distressed by

what she had witnessed. Therefore, she decided to visit

RespondentÓs place of business to discuss the incident.

Ms. Nicholes had no knowledge of Respondent prior to November 2,

2015. She identified Respondent from the name on the side of the

van. Ms. Nicholes maintained that her only interest in

approaching Respondent was to alert Respondent of the risk to the

children in the van because of a distracted driver.

12. When Ms. Nicholes arrived at RespondentÓs facility, she

spoke to Elizabeth Jackson. Ms. Nicholes advised Ms. Jackson

that she had observed her van driver using his cell phone while

driving, and she showed Ms. Jack son her photographs. Ms. Jackson

informed Ms. Nicholes that the driver was her son, Antuan

Bunkley. Ms. Jackson told Ms. Nicholes that she would be taking

him off driving until the matter was resolved.

13. After her meeting with Ms. Jackson, Ms. Nichole s drove

to Subway for lunch. While standing in line, she was approached

by a woman who identified herself as an employee of Respondent.

The employee asked Ms. Nicholes if she was the one who had posted

the photos of the van driver on Facebook. At that p oint,

Mr. Bunkley entered Subway. Ms. Nicholes took a picture of

Mr. Bunkley while he was standing in line behind her.

14. The next day, Ms. N icholes reported the incident to the

Department .

15. Upon receiving Ms. NicholesÓ complaint, the Department

i nitiated an investigation. T he case was assigned to Brandy

Queen, a Child Protective Investigator. Cheryl Dishong, a Child

Care Regulations Counselor, assisted her.

16. Ms. Queen testified that she started her investigation

by visiting RespondentÓs faci lity. She was accompanied by

Ms. Dishong. There, she met Ms. Jackson. During their

conversation, Ms. Jackson acknowledged that her facility owned

the van and that the driver was Mr. Bunkley. Ms. Jackson told

Ms. Queen that Mr. Bunkley had picked up si x children on the

afternoon of November 2, 2015. She provided the childrenÓs names

to Ms. Queen.

17. Ms. Jackson also allowed Ms. Queen and Ms. Dishong to

examine the van. Ms. Queen and Ms. Dishong spent some time

climbing through the van. The van has two bucket seats in the

front row and three rows of back seats. Ms. Queen and

Ms. Dishong sat in different seats to determine the vantage point

of the driver by the children riding in the van. They wanted to

see if the children could have observed Mr. B unkley texting while

he drove.

18. Ms. Dishong climbed into the back rear seat. Taking

into account that she is taller than the children who rode in the

van, Ms. Dishong slouched down to simulate a child passenger.

Ms. Queen stated that Ms. Dishong beli eved that a child could

adequately see the driver from the back, rear seat. However,

Ms. Queen conceded that during their inspection of the van, no

one was sitting between the rear back seat and the driversÓ seat.

Neither did a driver sit in the front s eat to determine whether

Mr. BunkleyÓs body would prevent a clear view of his hand while

he was driving ( p articularly, a driver as large as Mr. Bunkley as

di scussed below ) .

19. Next, Ms. Queen interviewed the six children who had

been riding with Mr. Bunk ley on the afternoon of November 2,

2015. At the final hearing, Ms. Queen explained that, before she

asked the children about Mr. BunkleyÓs driving, she presented

several preliminary questions to ascertain whether the children

understood the difference be tween telling the truth and telling a

lie. Ms. Queen testified that she believed the children were

telling her the truth during her interview. However, the

childrenÓs statements were not given under oath. 3/

20. Ms. Queen stated that, based on the eviden ce she

gathered, which included the childrenÓs statements, Ms. NicholesÓ

pictures , 4/ and her own observations of the van, she ÐverifiedÑ

that Mr. BunkleyÓs conduct constituted inadequate supervision.

Ms. Queen further stated that Mr. BunkleyÓs driving whi le

distracted caused concern since he ran Ðthe risk of getting into

a wreck.Ñ She believed that he had placed himself and the

children in his care Ðat risk of harm, of dying.Ñ

21. Of the six children, t he Department presented A.O. at

the final hearing to tell her story. 5/

22. A.O. was seven years old at the time of the incident.

(She was eight years old on the date of the final hearing.) A.O.

testified that she had attended RespondentÓs child care facility

for about a year. A.O. was familiar with Mr. Bunkley and

identified him in Ms. NicholesÓ photographs. A.O. relayed that

three to four different people had driven her in RespondentÓs

van , including Mr. Bunkley. A.O. stated that on the afternoon in

question, Mr. Bunkley picked her up aft er school in RespondentÓs

van.

23. At the final hearing, A.O. demonstrated proficient

knowledge of the functions of a cell phone. A.O. described

various uses of a cell phone including talking, texting, playing

games, and looking at Facebook.

24. A.O. testified that Mr. Bunkley used his cell phone

when he drove the van. A.O. stated that Mr. Bunkley texts while

driving. By Ðtexting,Ñ A.O. recounted that she observed

Mr. Bunkley moving his fingers on the phone at the same time he

was driving. A.O. also described see ing Mr. Bunkley looking at

Facebook on his cell phone while he was driving the van. A.O.

added that sometimes when she was riding with Mr. Bunkley, he

swerved off the road while he was using his phone. She also

described how the van would sometimes get n ear other cars on the

road. She commented that Mr. Bunkley occasionally drives the van

with his knees. She imparted that the way he drove scared her

sometimes.

25. A.O. expressed that when she rode in the van, she sat

in the very back seat on the right side. A.O. conveyed that,

despite sitting in the very back row, she could still see

Mr. Bunk ley hold and use a cell phone.

26. At the final hearing, Mr. Bunkley acknowledged that he

was driving RespondentÓs van on November 2, 2015, and was the

individua l seen in Ms. NicholesÓ photographs. Mr. Bunkley also

confirmed that he was transporting chi ldren in the van at that

time.

27. Mr. Bunkley firmly denied that he was texting while

driving RespondentÓs van. He denied ever using his phone while

driving the van. Mr. Bunkley admitted that he does carry his cell

phone when he drives. However, he claimed that he routinely keeps

his phone in his pocket. Mr. Bunkley asserted that he would only

use his cell phon e in the case of an emergency.

28. Mr. Bunkley ex pressed that Ms. Nicholes must have seen

him looking down at his transportation log when she observed him

on November 2, 2015. Mr. Bunkley explained that his log sheet

registers when and where he is to pick up and drop off children.

Mr. Bunkley relayed t hat he periodically reviews the log sheet as

he transports children. However, he only checks the

transportation log when the van is stopped. He remarked that

Ms. Nicholes must have taken her pictures of him on Highway 98

North when they were stopped at a stoplight.

29. Mr. Bunkley stated that he is 5Ó11Ñ tall and weighs 330

pounds. Because of his large size, he did not believe that it was

possible for A.O. to see anything he held in his lap from her seat

in the right rear of the van.

30. Mr. Bunkley o ffered his cell phone records to support

his assertion that he was not texting on the afternoon of

November 2, 2015. However, the phone records do not confirm

whether Mr. Bunkley was accessing or reading text messages as he

was driving. Nor do they prov ide any information regarding his

alleged ÐscrollingÑ or using Facebook.

31. Respondent is owned and operated by Ms. Jackson. She is

also Mr. BunkleyÓs mother. Ms. Jackson did not believe that

Mr. Bunkley was texting on his cell phone while he was driv ing the

van. Instead, she posited that the van was stationary when

Ms. Nicholes took her pictures, and that Mr. Bunkley was looking

do wn at his transportation log.

32. Based on the competent substantial evidence presented at

the final hearing, the clear and convincing evidence in the record

does not establish that Mr. Bunkley was scrolling and/or texting

on his cell phone while driving RespondentÓs van on November 2,

2015. Accordingly, the Department failed to meet its burden of

proving that Respondent committed Ðinadequate supervisionÑ which

would support an administrative fine under section 402.310.

CONCLUSIONS OF LAW

3 3 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sec tions 120.569 and 120.57(1).

3 4 . To operate in Florida, a child care facility must be

licensed or registered with the Departm ent. § 402.312(1), Fla.

Stat.

35 . The Department alleges that Respondent committed

Ðinadequate supervisionÑ in violation of sect ion 402.305(10) and

rule 65C - 22.001(5). 6/ The Department seeks to impose an

administrative fine against Respond ent for the alleged violation.

36 . Section 402.310 authorizes the Department to administer

an administrative fine against a licensed or registe red child care

facility as a disciplinary sanction. Section 402.310 states, in

pertinent part:

(1)(a) The department . . . may administer

any of the following disciplinary sanctions

for a violation of any provision of

ss. 402.301 - 402.319, or the rules a dopted

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.

* * *

(b) In determining the appropriate

disciplinary action to be taken for a

violation as provided in paragraph (a), the

followi ng 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 whic h 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 rule s to:

* * *

2. Establish 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 district s and a progressively

increasing level of penalties from

predisciplinary 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 hea lth and safety of children,

such as for the deliberate misuse of

medications. The department shall implement

this subparagraph on January 1, 2007, and the

implementation is not contingent upon a

specific appropriation.

(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 the department has reasonable cause

to believe that grounds exist for the denial,

suspensio n, 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.

37 . Sectio n 402.305(10) states:

TRANSPORTATION SAFETY. Ï Minimum standards shall

include requirements for child restraints or

seat belts in vehicles used by child care

facilities and large family child care homes

to transport children, requirements for annual

inspecti ons of the vehicles, limitations on

the number of children in the vehicles, and

accountability for children being transported.

38 . Chapter 65C - 22.001(5)(a) provides:

Direct supervision means actively watching and

directing childrenÓs activities within the

same room or designated outdoor play area, and

responding to the needs of each child. Child

care personnel at a facility must be assigned

to provide direct supervision to a specific

group of children, and be present with that

group of children at all times. When caring

for school - age children, child care personnel

shall remain responsible for the supervision

of the children in care, shall be capable of

responding to emergencies, and are accountable

for children at all times, including when

children ar e separated from their groups.

3 9 . The DepartmentÓs action to discipline Respondent is

penal in nature. Accordingly, the Department bears the burden of

proving the grounds for disciplinary action by clear and

convincing evidence. DepÓ t of Banking & Fin ., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996); see also Fla. DepÓ t of Child. & Fams. v. Davis Fam. Day

Care Home , 16 0 So. 3d 854, 856 (Fla. 2015).

40 . Clear and convincing evidence is a heightened standard

that Ð requires more proof than a Òpreponderance of the evidenceÓ

but less than Òbeyond and to the exclusion of a reasonable

doubt.ÓÑ Clear and convincing evidence is defined as an

intermediate burden of proof that:

[R] equires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; 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 i n the mind of

the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73

(Fla. 2014) ( quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983)). ÐAlthough this standard of proof may be met where

the evidence is in conflict . . . it seems to preclude evidence

that is ambiguous.Ñ Westinghouse Elect ric Corp. v. Shuler Bros. ,

590 So. 2d 986, 988 (Fla. 1991) .

4 1 . The competent substantial evidence in the record does

not establish, by clear and convincing evidence, that Respondent

committed Ðinadequate supervisionÑ due to Mr. BunkleyÓs alleged

unsafe driving practices. The DepartmentÓs case rests primarily

on the test imony of two witnesses. The undersigned finds areas of

indefiniteness in both accounts which create some ÐhesitancyÑ in

concluding that Respondent violated section 402.305( 10) and

rule 65C - 22.001(5)(a).

4 2. Ms. Nicholes testified with conviction. Howev er, the

evidence and testimony she presented at the final hearing was not

sufficiently persuasive to reach the level of clear and

convincing. First, while the photographs Ms. Nicholes produced do

show Mr. Bunkley lookin g down towards his lap while driving the

van, they do not show his right hand. Nor do they reveal a cell

phone. In addition, while Ms. Nicholes firmly asserted that she

saw Mr. Bunkley holding a phone, she did not actually see him

Ðtexting and/or scrollingÑ as he drove. Further, at the ti me

Ms. Nicholes observed Mr. Bunkley, her concentration was divided

between driving her own vehicle, keeping tabs on Mr. Bunkley, and

manipulating her cell phone to take his picture. Finally,

Ms. Nicholes did not witness Mr. Bunkley operate the van in a

careless or unsafe manner such as swerving in traffic, failing to

stop at stoplights, or inadequately accounting for other vehicles

on the road. Consequently, Ms. NicholesÓ testimony did not

establish, by clear and convincing evidence, that Mr. Bunkley

i nadequately supervised the children in his care, was incapable of

responding to emergencies, or failed to remain accountable f or

children riding in his van.

43 . Similarly, despite the fact that A.O. claimed that she

saw Mr. Bunkley using a cell phone whil e driving the van, her

testimony was not sufficiently persuasive to reach the clear and

convincing threshold. Initially, A.O. did not have a favorable

vantage point from which to observe Mr. BunkleyÓs activities while

he drove. Mr. Bunkley is a large man . The undersigned feels some

ÐhesitancyÑ in concluding that A.O. could effectively peer over

the passengers sitting in front of her and around Mr. BunkleyÓs

bulk to see him actively texting and/or scrolling on a cell phone

in his lap. Further, the unders igned was not confident that A.O.

was describing the events she observed on November 2, 2015. Her

testimony appeared to pull from actions and events from other

times she rode in the van with Mr. Bunkley.

44 . Consequently, the testimony and evidence prese nted at

the final hearing does not establish, by clear and convincing

evidence, that Mr. Bunkley was Ðtexting and/or scrolling while

drivingÑ on November 2, 2015 . Therefore, the Department did not

meet its burden of proving that Mr. Bunkley failed to meet minimum

standards of accountability for the children he transported in

RespondentÓs van. Neither did the Department sufficiently prove

that Mr. Bunkley inadequately met his responsibility to supervise

the children in his care or was incapable of respondi ng to their

needs in case of an emergency.

4 5. In sum, the competent substantial evidence in the record

does not establish, by clear and convincing evidence, that

Respondent violated section 402.305(10) or rule 65C - 22.001(5)(a).

According, the Department did not meet its burden of proof in

order to sanction Respondent under section 402.310.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Departme nt of Children and

Families enter a final order dismi ssing the Administrative

Complaint against Respondent , The Early Years Child Development

Center .

DONE AND ENTERED this 30 th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative La w 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 30 th day of March, 2017 .

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

2016 codification of the Florida Statutes.

2 / RespondentÓs Exhibit 2 was admitted over the DepartmentÓs

objection.

3 / The out - of - court statements Ms. Quee n obtained from the five

children , other than A.O. who testified at the final hearing , are

clearly hearsay. See § 90.801(1)(c), Fla. Stat. Under the

Administrative Procedure Act, Ð[h]earsay evidence may be used for

the purpose of supplementing or explain ing other evidence, but it

shall not be sufficient in itself to support a finding unless it

would be admissible over objection in civil actions.Ñ

§ 120.57(1)(c), Fla. Stat. The Department did not offer any

exception to the hearsay rule which would allow finding s of fact

based on the childrenÓ s out - of - court statements. Consequently,

although hearsay is admissible in administrative proceedings, the

undersigned makes no findings of fact based solely on the

childrenÓs unsworn, hearsay statements.

Even so, the undersigned does not find that the childrenÓ s

statements help the Department meet its burden of proving, by

clear and convincing evidence, that Mr. BunkleyÓs actions

constitute Ðinadequate supervision due to unsafe driving

conditions.Ñ Of the six chil dren, only three provide d

substantive support for Ms. QueenÓs ÐverifiedÑ conclusion that

Mr. Bunkley drove RespondentÓs van while texting. In addition to

A.O. , who testified at the final hearing, Ms. QueenÓs notes

include the following information:

a. C hild T.B.: T.B. was interviewed at the

same time as A.O. T.B. did not offer an

independent statement regarding Mr. BunkleyÓs

phone use. At the final hearing, Ms. Queen

explained that T.B. simply did not disagree

with A.O.Ós statement.

b. Child K.H.: K.H. was seven years old in

November 2015. K.H. told Ms. Queen that

Mr. Bunkley uses his phone to text and call

while driving the van. However, K.H.

commented that Mr. Bu nkleyÓs driving was

Ðperfect.Ñ

Ms. QueenÓs Investigative Summary records that the remaining

three children did not corroborate the complaint:

a. Child C.F.: Ms. Queen reported that C.F.

was ÐsomewhatÑ able to test for truth and

lie. C.F. stated that Mr. Bunkley did answer

phone calls in the van, but when Ðhe is

stopped.Ñ C.F. state d that Mr. Bunkley

played games on his phone, but did not

confirm whether he drives at the same time.

b. Child A.B.: A.B. was five years old in

November 2015. Ms. Queen recorded that he

was ÐsomewhatÑ able to test for truth and

lie. Ms. Queen also not ed that A.B. had

Ðvery limited verbal skills, was unable to

answer many questions.Ñ A.B. could not tell

Ms. Queen what Mr. Bunkley did with his cell

phone.

c. Child K.L.: K.L. told Ms. Queen that he

had not seen Mr. Bunkley use his phone in the

van.

4 / Ms. QueenÓs Investigative Summary records that Ms. Nicholes

was Ðunable to get a photo that shows the phone in

[Mr. BunkleyÓs] hand.Ñ

5 / In its Proposed Recommended Order, the Department

characterized A.O.Ós testimony as Ðundisputed.Ñ The undersigne d

notes that, ÐThe finder of fact is not required to believe the

testimony of any witness, even if unrebutted.Ñ City of Orlando

Police DepÓ t v. Rose , 974 So. 2d 554, 555 (Fla. 5th DCA 2008);

see also Fox v. DepÓ t of Health , 994 So. 2d 416, 418 (Fla.

1st DCA 2008) . (ÐIt is well - established that the ALJ was no t

required to believe AppellantÓ s testimony, even if unrebutted.Ñ)

6 / Neither section 402.305(10) nor rule 65C - 22.001(5)(a) contain s

language specifically addressing unsafe driving. However, the

co nduct the Department seeks to sanction does appear to fit

within these provisions. Section 402.305(10) states that the

minimum standard a licensed child care facility shall meet

regarding transportation safety include s Ðaccountability for

children being t ransported.Ñ Rule 65C - 22.001(5)(a) provides that

direct supervision means Ðresponding to the needs of each childÑ

and that child care personnel Ð shall remain responsible for the

supervision of the children in care, shall be capable of

responding to emerge ncies, and are accountable for children at

all times.Ñ Accordingly, the undersigned evaluated RespondentÓs

alleged misconduct in the context of the language of section

402.305(10) and rule 65C - 22.001(5)(a) in determining whether to

recommend the Departmen t impose an administrative fine pursuant

to section 402.310(1)(a).

COPIES FURNISHED:

Gregg S. Kamp, Esquire

Gregg S. Kamp, P.A.

Post Office Box 6235

Lakeland, Florida 33807

(eServed)

Paul Sexton, Agency Clerk

Department of Children and Families

Buildi ng 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Cheryl D. Westmoreland, Esquire

Department of Children and Families

1055 U.S. Highway 17 North

Bartow, Florida 33830

(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

(eS erved)

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 Fi nal Order in this case.