17-005759 Department Of Children And Families vs. Wiz Kidz Learning 2 Inc., D/B/A Wiz Kidz Learning 2 Status: Closed Recommended Order on Tuesday, March 20, 2018.

Summary: Respondent did not violate the terms of its probationary child care facility license by committing a Technical Support Violation, and its renewal application should not be denied for such a low-level infraction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN AND

FAMILIES,

Petitioner,

vs. Case No. 17 - 5759

WIZ KIDZ LEARNING 2 INC., d/b/a

WIZ KIDZ LEARNING 2,

Respondent. 1 /

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

January 5, 2018 , and February 16, 2018, at sites in Tallahassee

and Miami , Florida.

APPEARANCES

For Petitioner: Patricia E . Salman , Esquire

Department of Children and Famil i es

401 Northwes t Second Avenue , Suite N - 1014

Miami , Florida 33128

For Respondent: Curtis C. Turner, Jr., Esquire

Law Office of Curtis Turner, PLLC

8201 Peters Road, Suite 1000

Plantation , Florida 33 3 24

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent, a child

care facility operating under a probation - status license ,

violated the terms of probation by committing three Class II

Violations , as Petitioner alleges , and if so , whether the

license should be suspended or revoked; and, alternatively,

whether , if Respondent committed the alleged Class II Violations

(or any of them), Petitioner should deny Respondent's

application for renewal of license .

PRELIMINARY STATEMENT

On September 26 , 201 7 , Petitioner Department of Children

and Families issued a Notice of Intent to Deny Child Care

Facility Licensure, which informed Respondent Wiz Kidz

Learning 2, Inc., that Respondent's pending application for

renewal of license would be denied because, on August 17, 2017,

Respondent had been "cited for 3 class II violations and

7 class III violations in direct violation of [its] probationary

license terms."

The licensee timely exercised its right to be heard in a

formal administrative proceeding. On October 17, 2017, the

agency referred the matter to the Division of Administrative

Hearings, where the case was assigned to an Administrative Law

Judge.

The final hearing began as schedule d on January 5 , 201 8 ,

with both parties present. During the hearing, it became

apparent that the agency was actually seeking to revoke a new

p robation - status license , effect ive from September 2, 201 7 ,

until March 1, 2018, which had been issued while Respo ndent's

application for renewal of li cense was pending. The hearing was

continued so that the agency could is sue an administrative

complaint.

Petitioner issued and filed an Amended Administrative

Complaint on January 5, 2018, which charged Respondent wit h

three Class II Violations in violation of the terms of

probation, and sought to revoke Respondent's license on those

grounds.

The final hearing resumed, as scheduled, on February 16,

2018. The agency called two witness es , its employees Melinda

Harrison and Quendra Gomez . Petitioner's Exhibits 1 A, 1B, 8,

11, and 12 were received in evidence without objection .

Stephanie Scafie, an employee of Respondent , testified on

Respondent's behalf . Respondent's Composite Exhibit C w as

admitted into evidence.

The f inal hearing was transcribed, but neither party

ordered a transcript of the proceeding. Each side submitted a

P roposed R ecommended O rder . ( Respondent's was filed at

8:00 a.m. on March 2, 2018, the day after the deadline

established a t the conclusion of t he hearing but has been

considered, nonetheless . )

Unless otherwise indicated, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

2017 , except that all references to statutes or rules defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful act s .

FINDINGS OF FACT

1. Respondent Wiz Kidz Learning 2, Inc. ("Wiz Kidz") ,

hold s a probation - status Certificate of License , numbered

C11MD1914 , which authorizes the company to operate a child care

facility in Palmetto Bay , Florida , for six months , from

September 2, 2017 , through March 1 , 201 8 . The licensee do es

business under the name Wiz Kidz Learning 2 . As the operator of

a licensed child care facility , Wiz Kidz falls under the

regulatory jurisdiction of Petitioner De partment of Children and

Families ("DCF").

2. At the time of the final hearing, Wiz Kidz had been a

probation - status licensee for more than six months. DCF had

converted Wiz Kidz' license to probation status effective

June 29, 2017 , after finding Wiz Kidz guilty of violating the

staff - to - child ratio rule s four times in a two - year period, as

charged in an Amended Administrative Complaint dated May 25,

2017 , which Wiz Kidz had not contest ed . The conditions of

probation were that Wiz Kidz would pay all outstanding fines,

not violate the staff - to - child ratio rules again, not commit any

other Class I or Class II V iolations while on probation, and

submit to biw eekly inspections.

3. Wiz Kidz' initial probation - status license had been due

to expire on September 1, 2017. Shortly before that date,

however, Wiz Kidz had submitted a renewal application, which

meant that , by operation of law, the probation - status lic ense

would not expire until DCF had finally acted upon Wiz Kidz'

application for renewal. 2 / Instead of simply allowing Wiz Kidz

to operate on the "unexpired" license, however, DCF issued a new

probationary license to Wiz Kidz effective from September 2 ,

2017, to March 1, 2018 , which essentially renewed the initial

probation - status license for a nother six - month period of

probation . 3 /

4. On August 17, 201 7 , DCF empl oy ee s Claudia Alvarado

Campagnola and Quendra Gomez conducted an inspection of the Wiz

Kid z facility between the hours of 9:00 a.m. and 2:00 p.m. ,

during which they observed three alleged incidents of

noncompliance with " Class II " (mid - level) licensing standards ,

namely: (1) storing a toxic substance in a place accessible to

children; (2) failing to provide adequate direct supervision;

and (3) failing to possess a current attendance record during a

fire drill. On September 26, 2017, DCF issued to Wiz Kidz a

Notice of Intent t o Deny Child Care Facility Licensure, which

gave notice that DCF planned to deny Wiz Kidz' pending

application for renewal of license because , on August 17,

2017, Wiz Kidz had been "cited for 3 class II violations and

7 class III violations in direct viola tion of [its] probationary

license terms."

5. The " toxic substance " seen on August 17, 2017, was an

alcoholic beverage. Upon entering the facility, Ms. Gomez

noticed two unopened bottles of champagne at the back of a

shelf, behind (and partially obscured by) a large plastic toy

and other items. There is no photograph of the shelf in

evidence, and the descriptive testimony lacked precision; as

near as the undersigned can tell, this shelf was several feet

long, about one foot deep, and mounted about five feet high on

one of the classroom walls. One detail is not disputed: the

shelf was above the heads of even the oldest children in care

( between the ages of six and seven years) . Thus, e ven if a

child could have seen the bottles, he would not have been able

to take possession of them without deliberate effort ; because

the bottles were well out of reach , the child would have need ed

to stand on a stepladder or its equivalent ( e.g., a suitable

chair ) to get his hands on them .

6. There is no evidence that a stepladder was available.

Ms. Gomez testified that a child could have pulled over a chair

and climbed on it to reach the champagne bottles. Perhaps so.

On the other hand, w hile the undersigned can reasonably infer

that there were chairs in the classroom, he cannot reasonably

infer that any of them would have been fit to enable a child to

access the bottles . To establish the element of "accessibility"

based on the theory that a chair could be used as a stepladder,

DCF needed to pro ve that a suitable chair was actually there for

a child present in the classroom to use. This it failed to do.

T here is no evidence regarding the dimensions of the available

chair s, nor any evidence concerning the heights of the children.

The witn esses provided only a rough idea of the height of the

shelf ; their reasonably consistent accounts constitute clear and

convincing evidence of the general fact that the shelf was

higher than the kids' heads, but not of the actual measurement.

Absent proof of these material facts, Ms. Gomez's testimony

regarding the way a child could have gotten hold of the

champagne bottles is too speculative to support a finding that

these items were, in fact, physically accessible to the

children.

7. In addition, there is no evidence suggesting that a

child could have dragged a chair over to the shelf and clambered

up without attracting the attention of an adult. Given that the

shelf was located in the classroom, the undersigned infers that

no child reasonably could hav e pulled this off, unless the adult

in the room w ere asleep at the switch .

8. Finally, it is worth mentioning that if a child were

able to stand on a chair and grab a champagne bottle without

being caught , he still would not have access to the "toxic

subs tance" in the bottle unless he could somehow pour it out .

There is no evidence in the record concerning how one opens a

champagne bottle, but common experience teaches the undersigned

that a young child (the children in care were less than eight

years old ) likely would have difficulty twisting out the cork .

In any event, DCF failed to prove that any of the children at

Wiz Kidz reasonably could have popped the cork on the champagne,

and therefore it failed to prove that the champagne was

accessible to a child .

9. The other two alleged violations occurred during a fire

drill, which the inspectors required Wiz Kidz to conduct, in

their presence, during the children's nap time. Three children

exited the facility in their bare feet . The area where th e

children were assembled after evacuating the "burning building"

was near a dumpster; some litter and tree branches were on the

ground. From these facts, which were not seriously disputed,

DCF infers that the children were not adequately supervised.

10. The undersigned rejects this inference, which does not

reasonably and logically follow from the basic facts. T o begin,

t here is no rule that requires children always to wear shoes.

Thus, that s ome of the children had removed their footwear

before taking a nap is of no concern . When the alarm went off,

staff evidently did not make these children pause to put their

shoes back on , which would have protected their feet ÏÏ but

delayed their exit . To be sure, it is probably a good practice ,

gener ally speaking, to prevent young children from going outside

barefoot . Clearly, however, it is best not to let them perish

in a fire ; in an emergency, getting to safety is the highest

priority . Because the purpose of a fire drill is to simulate an

actual emergency, the fact of the barefoot children prompts

undersigned to infer , not that staff fail ed to provide adequate

supervision, but that staff facilitated the speediest escape

under the circumstances.

11. During the fire drill, one of the teachers failed to

take along a current attendance record when leaving the

building, which (unlike the wearing of shoes) is mandated by

rule .

Ultimate Factual Determinations

12 . Wiz Kidz is not guilty of storing a toxic s ubstance in

a place accessible to children because the evidence failed to

establish an incident o f noncompliance with Florida

Administrative Code Rule 65C - 22.002(1)(f).

13. Wiz Kidz is not guilty of failing to provide adequate

direct supervision because t he evidence failed to establish an

incident o f noncompliance with rule 65C - 22.001(5)(a).

14. The undersigned determines, based up on clear and

convincing evidence, that a staff member failed to possess a

current attend ance record during a fire drill, which constitute s

a n incident of noncompliance with licensing standard No. 33 - 12 ,

which implements r ule 65C - 22.002(7)(e) . This was Wiz Kidz'

first occasion of noncompliance with licensing standard

No. 33 - 12.

CONCLUSIONS OF LAW

15 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569 and 120.57(1), Florida Statutes.

16 . A proceeding, such as this one, to impose discipline

upon a license is penal in na ture. State ex rel. Vining v. Fla.

Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973).

Accordingly, DCF must prove the charges against Wiz Kidz by

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

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

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

1 7 . Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear 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

such 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.

Id. The Florida Supreme Court la ter adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough th is standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(ci tation omitted).

1 8 . Section 402.310 , Florida Statutes, authorizes DCF to

impose discipline against licen sed child care facilities . This

statute provides, in pertinent part, as follows:

[DCF] or [a] 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:

* * *

2. Convert a license or registration to

probation status and require the licensee or

registrant to comply with the t erms 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. A probation - status license or

registration may be suspended or revoked if

periodic inspection by the department or

local licensing agency finds that the

probation - status licensee or registrant is

not in compliance with the terms of

probation or that the probation - status

licensee or registrant is not making

sufficient progres s toward compliance with

ss. 402.301 - 402.319.

§ 402.310(1)(a), Fla. Stat. (emphasis added).

1 9 . DCF charged Wiz Kidz , a probation - status licensee,

with the commission of three Class II V iolations . A single

Class II V iolation would constitute noncompliance with the terms

of Wiz Kidz' probation.

20 . Rule 65C - 22.002(1)(f) provides that "[a]ll potentially

harmful items including cleaning supplies, flammable products,

poisonous, toxic, and hazardous materials must be . . . stored

in a locked area or must be inaccessible and out of a child ' s

reach. " Licensing standard No. 15 - 0 1 makes it a potential

level II offense if a "toxic substance was accessible to

children ." See CF - FSP Form 5316, Child Care Facility Standards

Classification Summary , July 20 12, incorporated by reference in

Fla. Admin. Code R. 65C - 22.010(1)(d)1.

21. Rule 65C - 22.001(5)(a) provides that "[c]hild 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. " Licensing standard

No. 05 - 15 makes it a potential le vel II offense if "[o] ne or

more children were not adequately supervised in that [ ], which

was anticipated as posing a threat to the health, safety or

well - being of a child, but the threat was not imminent ." See

C F - FSP Form 5316.

22. Rule 65C - 22.002(7)(e) provides that "[a] current

attendance record must accompany staff out of the building

during a drill or actual evacuation, and be used to account for

all children." Licensing standard No. 33 - 12 makes it a

potential level II offense if " [t]he facility operator/staff

failed to possess a current attendance record during a fire

drill, emergency preparedness drill or an actual emergency. "

See CF - FSP Form 5316 .

23. Rule 65C - 22.010(1)(d)2. defines a "Class II Violation"

as "the second or subsequent incident of noncompliance with an

individual Class II standard as described on CF - FSP Form 5316. " 4 /

24. Rule 65C - 22.010(1)(d)4. defines a " Technical Support

Violation" as " the first or second occurrence of noncompliance

of an individual Class III standard or the first occurrence of

noncompliance of an individual Class II standard. " 5 /

25 . The foregoing statutory and rule provisions "must be

construed strictly, in favor of the one against whom the penalty

would be impo sed." Munch v. Dep't of Prof'l Reg., Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v.

Dep't of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 ( Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n ,

57 So. 3d 929 , 931 (Fla. 1st DCA 2011)(statutes imposing a

penalty must never be extended by construction).

2 6 . Further, the grounds proven must be those specifically

alleged in the administrative complaint. See, e.g. , Cottrill v.

Dep't of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Kinney

v. Dep't of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Hunter v. Dep't of Prof'l Reg. , 458 So. 2d 842, 844 (Fla. 2d DCA

1984). Due process prohibits an agency from taking disciplinary

action against a licensee based on matters not specifically

alleged in the charging instrument. See § 120.60(5), Fla. Stat.

(" No revocation, suspension, annulment, or withdrawal of any

license is lawful unless, prior to the entry of a final order,

the agency has served , by personal service or certified mail, an

administrative complaint which affords reasonable notice to the

licensee of facts or conduct which warrant the intended action

. . . ."); see also Trevisani v. Dep't of Health , 908 So. 2d

1108, 1109 (Fla. 1st DC A 2005)("A physician may not be

disciplined for an offense not charged in the complaint.");

Marcelin v. Dep't of Bus. & Prof'l Reg. , 753 So. 2d 745, 746 - 747

(Fla. 3d DCA 2000); Delk v. Dep't of Prof'l Reg. , 595 So. 2d

966, 967 (Fla. 5th DCA 1992)("[T]he co nduct proved must legally

fall within the statute or rule claimed [in the administrative

complaint] to have been violated."). 6 /

27. As discussed above, t he undersigned has determined as

a matter of ultimate fact , based up on clear and convincing

evidence a dduced by DCF , that Wiz Kidz caused or allowed a

single incident of noncompliance with licensing standard

No. 33 - 12 to o ccur on August 17, 2017.

28. Because this was a first occurrence of noncompliance

with standard No. 33 - 12 for Wiz Kidz, the incident constitutes a

Technical Support Violation, not a Class II Violation, as those

terms are defined in rule 65C - 22.010.

29. The commission of a Technical S upport Violation is not

unambiguously prohibited by the terms of Wiz Kidz' probationa ry

license. 7 / T o establish a violation of probation, therefore, DCF

needed to prove that Wiz Kidz committed at least one Class I or

Class II Violation. This it failed to do. 8 /

30. Therefore, n otwithstanding the incident of

noncompliance with licensing standard No. 33 - 12, Wiz Kidz

remained in compliance with the terms of probat ion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Children and

Families enter a final order finding Wiz Kidz not in violation

of the terms of probation . It is further RECOMMENDED that Wiz

Kidz' applic ation for renewal of license not be denied based on

the commission of a Technical Support Violation .

DONE AND ENTERED this 20th day of March , 20 1 8 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of March , 20 1 8 .

ENDNOT ES

1 / The undersigned has amended the caption to reflect the proper

alignment of the parties, so that the Department of Children and

Families is Petitioner and the licensee is Respondent.

2 / See § 120.60(4), Fla. Stat.

3 / Although not at issue here, the legality of this renewal is

questionable because a "probation - status license or registration

may not be renewed." See § 402.301(1)(a)2., Fla. Stat.

4 / The rule provision quoted above is the version that was in

effect on August 17, 2017. This definition was later

substantially amended, effective October 25, 2017.

5 / The rule provision quoted above is the version that was in

effect on August 17, 2017. This definition was later repealed,

effective October 25, 2017.

6 / In its Proposed Recommended Order, DCF cites rule 65C -

22.002(1)(h), which provides that "[n]o narcotics, alcohol, or

other impairing drugs shall be present on the premises." A

violation of this rule, however, is a separate offense from the

violation of rule 65C - 22.002(1)(f) with which DCF charged Wiz

Kidz. Therefore, the undersigned has not considered whether Wiz

Kidz violated rule 65C - 22.002(1)(h).

7 / The relevant terms of probation are that Wiz Kidz shall "not

violate any Class I or Class II Standar d" while on probation.

Since a licensee's first instance of noncompliance with a

Class II Standard constitutes a Technical Support Violation

rather than a Class II Violation, the probationary terms at

issue are ambiguous as to whether a violation of a Cla ss II

S tandard that does not also constitute a Class II Violation is a

violation of probation. Such ambiguity must be resolved in

favor of the licensee.

8 / Notably, DCF has not asserted or argued that a mere Technical

Support Violation violates the term s of probation. Instead DCF

has simply ignored the distinction between Technical Support

Violations and Class II Violations, tacitly (and incorrectly)

equating the first occurrence of noncompliance with a Class II

S tandard to a Class II Violation.

COP IES FURNISHED :

Patricia E. Salman , Esquire

Department of Children and Famil i es

401 Northwest Second Avenue, Suite N - 1014

Miami, Florida 33128

(eSer v ed )

Curtis C. Turner, Jr., Esquire

Law Office of Curtis Turner, PLLC

8201 Peters Road, Suite 1000

Plantation, Florida 33324

(eSer v ed )

L acey Kantor , Agency Clerk

Department of Children and Families

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

Mike Carroll, Secretary

Department of Children and Families

Building 1, Room 202

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

(eServed)

John Jackson , Acting 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

will issue the Final Order in this case.