17-002598 Department Of Children And Families vs. Kids Village Early Learning Center, Owner Of Kids Village Early Learning Center Status: Closed Recommended Order on Tuesday, August 1, 2017.

Summary: Petitioner proved by clear and convincing evidence that Respondent committed a Class I violation of child care licensing standards and a $500 penalty is appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Ca se No. 17 - 2598

KIDS VILLAGE EARLY LEARNING

CENTER, OWNER OF KIDS VILLAGE

EARLY LEARNING CENTER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 6, 2017, in Tallahassee, Florida, before

Administrative Law Judge Suzanne Van Wyk of the Division of

Administrative Hearings.

APPEARANCES

For Petit ioner: Michael A ndrew Lee, Esquire

Department of Children and Families

2383 Phillips Road, Room 231

Tallahassee, Florida 32308

For Respondent: Angela Mitchell, pro se

Kids Village Early Learning Center

1000 West Tharpe Stre et, Suite 24

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

Whether Petitioner, Department of Children and FamiliesÓ

(the Department), intended action to cite Respondent, Kids

Village Early Learning Center, with a Class I violation and

impose a fine in the amount of $500, is appropriate.

PRELIMINARY STATEMENT

The Department issued an Administrative Complaint dated

February 23, 2017, charging Respondent with a Class I violation

of child care facility licensing standards and imposing a

monetary fin e of $500 against Respondent. Respondent timely

filed a request for formal administrative hearing to contest the

DepartmentÓs decision.

The matter was originally assigned to Administrative Law

Judge Yolonda Y. Green and scheduled for final hearing on

July 6, 2017. The case was transferred to the undersigned on

July 5, 2017, and the final hearing commenced as scheduled.

At the final hearing, the Department offered the testimony

of two witnesses: Angela Mitchell, Director of Kids Village

Early Learning Cen ter (Kids Village); and Elizabeth Provost, the

DepartmentÓs family services counselor. Respondent offered the

testimony of Ms. Mitchell and Kids Village employees, Pamela

Sampson and Teresa Walker.

PetitionerÓs Exhibits 1 through 8 were admitted in

eviden ce, and the undersigned granted the DepartmentÓs request

for official recognition of section 402.310, Florida Statutes,

and Florida Administrative Code Rule 65 C - 22.010.

The proceedings were recorded but the parties did not order

a transcript of the final h earing. Each party timely filed a

Proposed Recommended Order (PRO) and each partyÓs PRO was

considered in the preparation of this Recommended Order.

Unless specifically stated otherwise herein, all references

herein to Florida Statutes are to the 2016 co dification.

FINDING S OF FACT

1. The Department is responsible for licensing and

monitoring Ðchild care facilities,Ñ as that term is defined in

section 402.302(2), Florida Statutes. Kids Village is a child

care facility licensed by the Department.

2. Kid s Village is operated by Angela Mitchell and is

located at 1000 West Tharpe Street, Suite 24, Tallahassee,

Florida. Kids Village is located in a shopping area commonly

referred to as a Ðstrip mall,Ñ a series of retail and office

establishments located alo ng a sidewalk with exterior entrances.

A Dollar General store is located across the parking lot from

the strip mall.

3. On November 2, 2017, L.C., a two - year - old child

enrolled at Kids Village , exited the facility unaccompanied and

on his own volition. A stranger spotted the child in the

parking lot near the Dollar General store and left her vehicle

to pick up the child. A parent of a former student at Kids

Village, who works in the strip mall, recognized L.C. and

returned him to the facility. L.C. was absent from the facility

for approximately four minutes.

4. Teresa Walker, a teacher at Kids Village, who was

working on the day of the incident, called and reported the

incident to Ms. Mitchell, who was not working at the facility

that day.

5. Both Ms. Walker and Ms. Mitchell completed required

incident reports and filed them with the Department.

6. The incident was also the subject of an anonymous

complaint received by the DepartmentÓs child abuse hotline the

same day.

7. Elizabeth Provost, a Departm ent family services

counselor, received both the incident reports and the complaint

and began an investigation. As part of her investigation,

Ms. Provost interviewed the child protective investigator who

received the complaint from the abuse hotline, as w ell as

Ms. Mitchell and Ms. Walker. Ms. Provost also viewed the

facilityÓs security camera footage from the day of the incident.

8. Based on her investigation, Ms. Provost determined that

L.C.Ós mother arrived at the faci lity on the morning of

November 6 , 2017, signed the child in at the reception desk,

engaged in conversation with another employee of the facility,

looked around the corner where a gate separates the reception

area from a hallway leading to classrooms, then exited the

facility. Afterward, security video shows L.C. exiting the

facility without supervision.

9. Based upon her investigation, Ms. Provost concluded

that the facility was in violation of Florida Administrative

Code Rule 65C - 22.001(5), which reads, in pertinent part, as

follows:

D irect supervision means actively watching

and directing childrenÓs activities within

the same room or designated outdoor play

area, and responding to the needs of the

child. Child care personnel at a facility

must be assigned to provide direct

supervision to a specific group of children

at all times.

10. Ms. Provost also deter mined the violation was a

Class I violation of Department rules, which is described as

Ðthe most serious in nature, [which] pose[s] 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.Ñ Fla. Admin. Code R. 65C - 22.010(1)(d)1.

11. At hearing, Ms. Mitchell admitted that, on November 2,

2016, L.C. was indeed faced with a serious or imminent threat to

his safety which could have resulted in injury or death. As

such , Ms. Mitchell admitted the Department properly determined

the incident was a Class I violation of rule 65C - 22.001(5).

12. Ms. MitchellÓs contention was that Kids Villa ge was

not completely at fault, and that the penalty assessed should be

reduced to account for the motherÓs negligence.

13. L.C. was known to the staff at Kids Village as a

Ðrunner.Ñ He experienced separation anxiety and would

frequently try to follow hi s mother when she left the facility

after dropping him off for school. Ms. Mitchell testified that

L.C.Ós mother had been instructed to walk L.C. to his classroom

and hand him over to his teacher before leaving the facility.

14. Ms. Mitchell faults the m other for having signed the

child in on the morning of the incident , but leaving the

facility without walking the child all the way to his classroom.

The evidence adduced at hearing did not support that version of

the facts.

15. Ms. Walker was the only w itness who testified at the

final hearing who was actually at the facility on the day in

question. Her recollection of the events was clear and her

testimony was credible.

16. Ms. Walker works in the Ðbaby room,Ñ which is located

to the left of the recep tion area past the reception desk. The

gate separating the reception area from the hallway to the

classrooms is to the right of the reception desk.

17. Ms. Walker testified that after his mother signs L.C.

and his older brother in on most mornings, L.C. comes to stay

with her in the baby room. Ms. Walker gives him hugs and extra

attention to help overcome his anxiety, then walks him to his

classroom when he is calm.

18. On the morning in question, L.C.Ós mother came into

the facility and signed the chil dren in at the reception desk.

Signing a child in requires both completing a physical sign - in

sheet, and an electronic interface with a computer system.

While his mother was signing in the children, L.C. went to the

baby room where Ms. Walker greeted him and hugged him. L.C.Ós

mother finished signing in the children and talking to the

staff, then she turned to find both children gone. The mother

Ðhollered outÑ to Ms. Walker something to the effect of ÐWhere

did the children go?Ñ Ms. Walker replied that they had gone Ðto

the back.Ñ

19. L.C.Ós mother walked over to the gate separating the

reception area from the classroom hallway and peered around it

down the hallway. She then exited the facility.

20. Shortly thereafter, L.C. came back through the gate ,

into the reception area, and exited the facility through the

front door unaccompanied.

21. L.C. was alone outside the facility in a crowded

parking lot of a retail strip mall for almost five minutes. He

had crossed the parking lot during morning traffi c to almost

reach the Dollar General store. L.C. was spotted by a stranger

who got out of their own vehicle to pick up th e child. L.C. was

recognized, and returned to the facility, by someone who worked

at a nearby store. One does not need an overactive imagination

to list the dangers that could have befallen the child during

that brief time period.

22. Kids Village has taken corrective action since the

incident and installed a security system on the front door which

requires a person to push a button on a panel next to the door

in order to exit the facility.

23. There was no testimony regarding any prior citations

against Kids Village for violation of child care licensing

standards. The investigative summary prepared by Ms. Provost

states, ÐKidÓs Vil lage has one prior with the Department earlier

in 2016[;] there were no indicators of inadequate supervision.Ñ

24. Rule 65C - 22.010(2)(e) provides appropriate

disciplinary sanctions to be imposed for Class I violations, as

follows:

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 of not less than $100 nor

more than $500 per day for each violation,

and may impose other disci plinary sanctions

in addition to the fine.

25. Section 402.310(1)(b) provides:

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 th e 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. 401.301 - 402.319

have been viola ted.

2. Actions taken by the licensee or

registrant to correct the violation or

remedy complaints.

3. Any previous violations of the licensee

or registrant.

26. In determining to impose a $500 penalty, Ms. Provost

considered the subsequent remedial a ction taken by Kids Village

to prevent future escapes by children in its care. She also

considered the serious threat of harm or death posed to L.C. due

to inadequate supervision by Kids Village. Imposition of the

maximum fine for the Class I violation i s supported by the

record in this case.

27. Neither the statute nor the rule direct the Department

to consider the negligence of persons other than the licensee in

determining the appropriate penalty to be imposed for a Class I

violation.

CONCLUSIONS OF L AW

28. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to sec tion 120.57,

Florida Statutes.

29. In cases where a state agency alleges that a licensee

engaged in wrongdoing, the burden is on the Department to prove

the w rongdoing. DepÓt of Banking & Fin. v. Osborne Stern and

Co. , 670 So. 2d 932, 934 (Fla. 1996). Factual findings based on

record evidence must be made indicating how the alleged conduct

violates the statutes or rules or otherwise justifies the

proposed san ctions. Mayes v. DepÓt of Child. & Fam. Servs. , 801

So. 2d 980, 982 (Fla. 1st DCA 2001).

30. The standard of proof in this case is clear and

convincing evidence because the Department is seeking to

discipline Ms. Mitchell and/or Kids Village and take ac tion

detrimental to Ms. MitchellÓs license, thus making the matter

penal in nature. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

31. The clear and convincing standard has been described

as follows:

[C]lear and convincing evidence requires

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 suc h weight that it produces in 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.

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

32. The Department is au thorized by section 402.310 to

impose sanctions against a licensed child care facility which

violates provisions of licensing standards. Those licensing

standards are found in s ection s 402.310 through 402.319 and r ule

65C - 22.

33. Section 402.310 states i n 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 t o

exceed $100 per violation, per day.

However, if the violation could or does

cause death or serious harm, the department

. . . 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.

34. The Department proved, by clear and convincing

evidence, that the imposition of a $500 fine for the Class I

violation was entirely appropriate given the seriousness of the

potential harm that could have come to the child due to

inadequate supervision, even considering the subsequent remedial

action taken by Kids Village.

RECOMMENDATION

Upon consideration of the evidence presented at final

hearing, and based on the foregoing Findings of Fact and

Conclusions of Law, i t is RECOMMENDED that a final order be

entered by Respondent, Department of Children and Families,

finding Kids Village Early Learning Center committed a Class I

violation of child care facility licensing standards and

imposing a monetary sanction of $500.

DONE AND ENTERED this 1st day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

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 1st day of August , 2017 .

COPIES FURNISHED:

Lisa M. Eilertsen, Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Camille Larson, Esquire

Department of Children and Families

2383 Phillips Road, Room 231

Tallahassee, Florida 32308

(eServed)

Angela Mitchell

Kids Villag e Early Learning Center

Suite 24

1000 West Tharpe Street

Tallahassee, Florida 32303

(eServed)

Michael Andrew Lee, Esquire

Department of Children and Families

2383 Phillips Road , Room 231

Tallahassee, Florida 32308

(eServed)

Mike Carroll, Secretary

Dep artment of Children and Families

Building 1, Room 202

1317 Windwood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Rebecca Kapusta, General Counsel

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

wi ll issue the Final Order in this case.